1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 * * * 12 13 14 WEDNESDAY, OCTOBER 26, 1994 15 VOLUME XXIII 16 17 * * * 18 19 20 21 _____________________________________________________________ REPORTER: JULIA K. McBRIDE 22 Coulter, Shay, McBride & Rice 1221 Starks Building 23 455 South Fourth Avenue Louisville, Kentucky 40202 24 (502) 582-1627 FAX: (502) 587-6299 25 2 1 2 I_N_D_E_X _ _ _ _ _ 3 4 Hearing in Chambers regarding Heiligenstein testimony.... 4 5 Hearing in Chambers regarding Coleman testimony.......... 14 6 Voir Dire Examination of Lee A. Coleman, M.D............. 19 7 Continued Hearing in Chambers regarding Coleman testimony........................................ 42 8 * * * 9 WITNESS: DOCTOR_LEE_A._COLEMAN _______ ______ ___ __ _______ 10 By Mr. Smith............................................. 69 11 By Mr. Stopher...........................................153 12 * * * 13 Hearing in Chambers......................................169 14 Reporter's Certificate...................................187 15 * * * 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH Suite 745 6 Campbell Center II 8150 North Central Expressway 7 Dallas, Texas 75206 8 NANCY ZETTLER 1405 West Norwell Lane 9 Schaumburg, Illinois 60193 10 IRVIN D. FOLEY Rubin, Hays & Foley 11 300 South, First Trust Centre Louisville, Kentucky 40202 12 13 FOR THE DEFENDANT: 14 EDWARD H. STOPHER Boehl, Stopher & Graves 15 2300 Providian Center Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. 17 LAWRENCE J. MYERS Freeman & Hawkins 18 4000 One Peachtree Center 303 Peachtree Street, N.E. 19 Atlanta, Georgia 30308 20 * * * 21 22 23 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Wednesday, October 26, 1994, at approximately 7:33 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS WITH MS. ZETTLER AND 10 MR. MYERS PRESENT) 11 MS. ZETTLER: Okay. We got up to Page 152. 12 MR. MYERS: Yeah. The next one is on 153. 13 MS. ZETTLER: Here's the list, Judge. 14 JUDGE POTTER: How far did we get yesterday, 15 Ms. Zettler? 16 MS. ZETTLER: 146 is where we left off. 17 JUDGE POTTER: I don't keep track -- up with 18 them so when I sent you the note I didn't know whether he had 19 an hour left or what. 20 MS. ZETTLER: I told Marsha in the note we're 21 just about there, and then he saw that something was going on. 22 JUDGE POTTER: Okay. 23 MR. MYERS: We start on 146? 24 MS. ZETTLER: These are the pages we pulled to 25 read. 5 1 JUDGE POTTER: These other pages you -- 2 MS. ZETTLER: Right. I didn't want to lose the 3 originals. 4 JUDGE POTTER: I wanted to see the sentence 5 before 153. 6 MS. ZETTLER: This is just something out of the 7 blue, Judge. If they want to read it, that's fine, but I'm 8 not going to read it. 9 JUDGE POTTER: Mr. Myers, tell me how this fits 10 in on 153, because I really can't tell where they're even 11 talking about the same thing. 12 MR. MYERS: Yes, sir. They're reading up 13 through the beginning of 151 and then picking up on 154, and 14 this is within the context of the entire discussion of what 15 was the method you used to do this paper, which is what he's 16 been testifying about since we started yesterday. In fact, 17 almost the entire first day or a great deal of it was on this 18 paper, and it's just part of what did you look at, what was 19 the sequence, and it's part of that situation. 20 MS. ZETTLER: But he already talks about -- this 21 is just, you know, gratuitous thing that comes out of nowhere 22 and it's already included in the discussion that's already, 23 you know... 24 JUDGE POTTER: All right. But it's not 25 misleading; it's the same thing. Is that right, Ms. Zettler, 6 1 that he's just saying again something he said? Because I'll 2 be honest with you, I didn't follow yesterday too closely. 3 MS. ZETTLER: Yes. Unfortunately, it's going to 4 take awhile to get to the point on this. 5 JUDGE POTTER: Sustain 153. 154. So this 6 should not be there. 7 MS. ZETTLER: The stuff about blinding, Larry, 8 we don't talk about. I mean, I took all that stuff out 9 because it gets confusing. 10 JUDGE POTTER: All right. I'm going to overrule 11 154 simply because it doesn't make sense. 12 Did you talk about Doctor -- 13 MS. ZETTLER: Coccoro. 14 JUDGE POTTER: -- again? 15 MS. ZETTLER: No. And then we jump to another 16 whole area. 17 Your Honor, we'll agree to read that last 18 question and answer about Doctor Coccoro, but if they want 19 that other part in, they should read it. 20 JUDGE POTTER: That's what I was thinking. All 21 right. What I'm going to do is sustain it as to 162 and 163 22 through Line 3, and then the rest of it, if you want to come 23 back and read it. And, obviously, if you want to read through 24 your-all's part, you can read additional stuff, but you 25 obviously can read this as part of, like, cross-examination. 7 1 MS. ZETTLER: Well, if they're going to read 2 additional stuff they should let us know what it is, shouldn't 3 they? 4 MR. MYERS: Well, to the extent that the Court 5 is overruling and is suggesting we read it, we certainly 6 reserve the right to read what the Court says to read. 7 MS. ZETTLER: Right. But if you're going to 8 read additional stuff we'd like to see it. 9 JUDGE POTTER: What I'm saying is if because you 10 have to put something in context or have a lead-in or 11 something else, what I'm saying is you could read more than 12 this if you wanted to read it as part of cross-examination. 13 MR. MYERS: Yes, sir. I understand. 14 JUDGE POTTER: But we go through the normal 15 things; they give you notice ahead of time. 16 MR. MYERS: And this takes it down -- 17 JUDGE POTTER: Through 166. 18 MR. MYERS: All right. 19 JUDGE POTTER: 172. 20 MS. ZETTLER: And that's an objection. 21 JUDGE POTTER: Where are we now? Is this the 22 thing that -- the paper that -- 23 MR. MYERS: Same paper that he's been talking 24 about. 25 MS. ZETTLER: Same paper. 8 1 MR. MYERS: We don't get off the paper for a 2 while. 3 JUDGE POTTER: And I take it this paper was 4 submitted to the -- this is the reanalysis that the ad hoc 5 committee did and saw in 1991? 6 MR. MYERS: Well, this is the violent-aggression 7 part of it. 8 MS. ZETTLER: Right. And the advisory committee 9 did review what became the paper that was published, but, you 10 know, they've gone on and on and on about papers and how this 11 is a great paper. 12 JUDGE POTTER: Okay. I'm going to overrule 172. 13 I mean, if it had been published we'd hear about it, so I 14 think we should get out that it was not published. 15 All right. What does 198 through 200 mean? 16 Does that mean -- 17 MS. ZETTLER: That's all together, and I'm 18 trying to... 19 JUDGE POTTER: All right. So you're not giving 20 it to them. This is just him coming on and saying I would use 21 it? 22 MS. ZETTLER: Yeah, physicians. 23 JUDGE POTTER: Okay. I'm going to overrule the 24 objection to 198 through 200. Obviously, it can be read as 25 part of your case if you want. 9 1 MR. MYERS: Yes, sir. 2 JUDGE POTTER: This is the same drill on 205; 3 right? 4 MS. ZETTLER: Uh-huh. 5 MR. MYERS: But 205 to 206, they pick up again 6 at 206, 207. 7 JUDGE POTTER: All right. I'm going to leave 8 205 in, I'm going to sustain, because that's a lead-in. 9 Okay. Mr. Myers, on 207, 208, you're just going 10 to have to tell me. I didn't read the lead-in or anything. 11 MR. MYERS: Well, the lead-in is 206, 8 to 24 12 and then 207, 1 to 4, and this is a continuation. 13 JUDGE POTTER: This is just getting in that 14 normal doctors prescribe it a lot; is that right? 15 MS. ZETTLER: Yes. And then the next part, 16 Judge, is they're talking about this new condition called 17 subsyndromal syndrome, and basically what it is is a less 18 severe form of depression. It doesn't have anything to do 19 with what happened before. 20 JUDGE POTTER: Let Mr. Myers tell me, what's the 21 definition of a subsyndromal... 22 MR. MYERS: The previous parts that are read on 23 206 and 207 have to do with primary-care doctors prescribing 24 the drug and then the subject matter of prescribing it in a 25 depressed condition that may not be a depressed condition, so 10 1 that does go together. 2 MS. ZETTLER: Absolutely not. What that is is a 3 shift in subject. Now, what the blue is, is if you're going 4 to let him read this part, we want this other part in to fully 5 describe what we're talking about here. 6 JUDGE POTTER: I'm going to overrule 207 and 208 7 because I can't figure out how it fits in. 215. 8 MS. ZETTLER: You don't mind if I stand over 9 your shoulder, do you? 10 JUDGE POTTER: No. 11 MS. ZETTLER: Again, the blue is what we want in 12 if you let them read that. 13 JUDGE POTTER: Oh, so you were not going to read 14 this otherwise? 15 MS. ZETTLER: No. 16 JUDGE POTTER: Because it looked like a good 17 lead-in to what you were going to read. 18 MR. MYERS: This goes back to something earlier 19 discussed, and the reason we want it read is to put it into 20 context whether it was an IND or NDA study, which further 21 identifies what it was. 22 JUDGE POTTER: See, my problem is like you were 23 talking about, how earlier? Where is the agitation study? 24 MS. ZETTLER: Way, way back. 25 MR. MYERS: Hang on for just a second. I think 11 1 in Page 35 to 50, in that range? 2 JUDGE POTTER: Oh, something that's already 3 passed? 4 MR. MYERS: Yes, sir. 5 JUDGE POTTER: I'm going to overrule 215. 227. 6 MR. MYERS: We ask for that, Judge, because it's 7 a lead-in to what did you consider, what did you think about 8 doing. 9 JUDGE POTTER: All right. 227 is sustained 10 and -- is 228, -29, -30, all those run together? 11 MR. MYERS: Through 236 are all together. 12 JUDGE POTTER: And all this comes because 13 they've asked one little thing? 14 MR. MYERS: Well, I don't know that it's one 15 little thing. It's been asked in a lot of other depositions. 16 JUDGE POTTER: How about this, Ms. Zettler. 17 Apparently, if you will give up 227 and 228, we get -- that's 18 just where you ask them have they done anything where the 19 primary study is -- 20 MR. MYERS: They're reading parts of 233 through 21 235. 22 JUDGE POTTER: All right. Let me take a quick 23 look at it. 24 MS. ZETTLER: Judge, we'll give that up if 25 they'll give up the rest of it, because you're right. It's 12 1 been... 2 MR. MYERS: You'll give up 233 to 236? 3 MS. ZETTLER: I was talking 227 to 229. 4 MR. MYERS: Isn't the start 228, Line 16? 5 JUDGE POTTER: Well, actually, if you want to 6 cut the whole thing, what you could do is start with 227 -- 7 he's got a lead-in to that one and then he's got a lead-in to 8 this one. 9 MS. ZETTLER: Right. But if I could see what 10 the rest of it is. 11 MR. MYERS: I'll withdraw from 227, including 12 what you sustained, to 236, if they'll withdraw everything 13 that they've designated on those pages. 14 MS. ZETTLER: Well, let me see. Yeah. We'll 15 take it out. 16 JUDGE POTTER: All right. 17 MS. ZETTLER: How far are we going? 18 JUDGE POTTER: To 236. 19 MR. MYERS: So we're taking everything out to 20 236 that anybody designated? 21 JUDGE POTTER: Right. 242. Who is Doctor 22 Geller? 23 MR. MYERS: I'll withdraw that. 24 MS. ZETTLER: Thank you. 25 JUDGE POTTER: Okay. So now we're at 252. 13 1 MS. ZETTLER: This sort of strings in with that 2 last group we just agreed on, I think. 3 JUDGE POTTER: We're going back to zero, aren't 4 we? 5 MS. ZETTLER: Uh-huh. 6 MR. MYERS: I'll withdraw 252 through Line 7 on 7 258. 8 MS. ZETTLER: Line 7 on 258? 9 MR. MYERS: Through Line 7 on 258. 10 JUDGE POTTER: What on earth is the Rocky 11 Mountain -- 12 MS. ZETTLER: The Rocky Mountain Poison Control 13 Center Study is an overdose study -- it's like a cost- 14 effectiveness study as to how to treat people overdosed on 15 Prozac as opposed to other antidepressants. 16 (PROCEEDINGS INTERRUPTED BY A KNOCK ON THE DOOR) 17 MR. SMITH: Excuse me. Doctor Coleman and his 18 lawyer are here. 19 JUDGE POTTER: I'm going to overrule all of 252 20 through 259, and some of it was withdrawn, but the parts that 21 weren't. 22 Let's deal with Doctor Coleman because we don't 23 know how much longer -- 24 MS. ZETTLER: And then if we have to, I guess we 25 can do the rest of this at lunch. Doctor Coleman may take 14 1 awhile. 2 JUDGE POTTER: I don't anticipate him taking 3 awhile. 4 (AT 8:05 A.M., ALL ATTORNEYS ON TODAY'S 5 APPEARANCE PAGE AND MS. TRACY PREWITT 6 ENTER CHAMBERS) 7 JUDGE POTTER: Let me review why I think we're 8 here. The Plaintiffs intend to call Doctor Coleman today and 9 intend to ask him some questions, and the one question that 10 came up yesterday that I assume the Defendants objected to, 11 and maybe did object to, but it occurred to me that it's the 12 kind of question that ought to be asked beforehand so that if 13 he gets a negative answer or an "I don't know" or something, 14 the question hasn't been asked in front of a jury. And that 15 was -- particular question was, "Isn't it true, Doctor 16 Coleman -- and I'm not trying to tell you how to phrase it -- 17 that Lilly has agreed to hold you harmless from any exposure 18 you've got in this lawsuit," or you've had discussions with 19 them about that or touching on that topic in some way. And I 20 take it, Mr. Stopher, you-all object to him being asked those 21 type of questions, is that right, or is this Mr. Freeman's 22 witness? 23 MR. FREEMAN: No, sir. Mr. Stopher's. 24 JUDGE POTTER: It's a Louisville person. 25 Mr. Stopher? 15 1 MR. STOPHER: Right. We object. 2 JUDGE POTTER: Okay. And I take it, Mr. Smith, 3 you do intend in your -- if it becomes advantageous to you 4 during your direct examination to ask him those questions, is 5 that right, or at least have that option available to you? 6 MR. SMITH: That's correct, Your Honor; at least 7 to have that option. I haven't decided that's indeed what I'm 8 going to do. Additionally, I intend to examine the Witness, 9 and I think this is the appropriate time to do it, on the 10 Daubert theory. As you recall, we are of the opinion that 11 Doctor Coleman cannot express an opinion concerning causation 12 with respect to the events of September 14th, 1989, and I want 13 to inquire of him what knowledge he has concerning matters 14 that would be appropriate for Daubert. 15 JUDGE POTTER: Okay. The other thing that came 16 up yesterday is that Doctor Coleman was a party, is a party as 17 to Wesbecker and has been dismissed as to the plaintiffs, the 18 current plaintiffs. I take it, Mr. Smith, you intend to get 19 that in, is that right, or at least you want that option 20 available to you? 21 MR. SMITH: The option available. 22 JUDGE POTTER: How would you intend to describe 23 that? 24 And, Mr. Stopher, let me ask you this, do you 25 have any objection to it getting in that he was -- he is a 16 1 party and has been dismissed out? 2 MR. STOPHER: Right. We object, Judge. 3 JUDGE POTTER: I think all of this comes in, 4 because I think it goes to his bias and his, you know, 5 potential bias and whatnot. My only concern about the third 6 issue, which is that he's been dismissed, is how it is 7 described to the jury. And so, Mr. Smith, how would you 8 intend to go about that? And let me just tell you what my 9 concern is; part of it is personal and part of it is accuracy. 10 Judges tend to forget that when a judge says, "Do you mind 11 coming in," it's not a request; lawyers think they've been 12 ordered to come in. And jurors take everything that anybody 13 says, a judge says, even more seriously than lawyers take it. 14 So I don't want anybody to come away with some impression that 15 I've said he's an honest man, he's a good psychiatrist, he 16 didn't do anything that he shouldn't be criticized for or that 17 the Plaintiffs have got a frivolous case because they sued 18 somebody that's been put out. Those are my concerns. Mr. 19 Smith, how do you intend to approach that issue? 20 MR. SMITH: If I approach it at all, Your Honor, 21 it would be, "Doctor Coleman, you were named as a defendant by 22 the Plaintiffs in this case, and you are no longer a defendant 23 by virtue of a court ruling in connection with a statute in 24 this state that insulates psychiatrists from claims of third 25 parties in matters of this nature and, in fact, that issue is 17 1 still on appeal concerning whether or not you had any duty to 2 the Plaintiffs and whether or not you breached a duty to the 3 Plaintiffs, and there's still a potential that you might be an 4 active defendant in this case." 5 JUDGE POTTER: All right. Perhaps with the 6 exception of the word "insulate" I think that accurately 7 describes what's taken place. Mr. Stopher, if I'm going to 8 let it in, do you have any problems with it going along those 9 lines? 10 MR. STOPHER: Well, I think that if it's going 11 to come in, Judge, that there needs to be an explanation by 12 this Court with the order explaining. Rather than having the 13 Witness, who is not a lawyer, and Mr. Smith characterizing the 14 order, I think it's up to the Court, if this is going to come 15 in, to advise the jury as to what the conditions were to the 16 dismissal of Doctor Coleman. And I object to it coming in at 17 all for all these reasons. I think it gets us into an area 18 where there's -- where we're trying another case that's not 19 even in front of the jury, in front of the jury. 20 JUDGE POTTER: Right. First of all, what's 21 important is not what actually took place; it's what Doctor 22 Coleman believes his status is, because it's how it would 23 impinge on his testimony. So I'm not real excited about me 24 instructing the jury because I think we run into the jury even 25 more so glopping onto a phrase or a turn I use -- term I use 18 1 and reading much more into it than is there; whereas, if Mr. 2 Smith asks him a question and the guy answers it, they're 3 going to say those are two people. If I use the word 4 "insulate" or if I say -- what did you call it yesterday, 5 Mr. Stopher, a technicality or not on the merits? 6 MS. ZETTLER: Procedural. 7 JUDGE POTTER: Procedural, whatever it was, it 8 takes on a much greater thing. So I think the proper way to 9 do it is through the examination of the Doctor. And, you 10 know, I guess the bottom line is that if, you know, it gets to 11 be too big a wrangle, somebody just introduces the opinion and 12 there it is why he's out. And if I have to speak, that's the 13 way I would speak is through the opinion that I wrote. 14 Yesterday I confessed I had not read his 15 deposition very carefully, or if I did I had forgotten it, but 16 I do write all my own opinions and don't use clerks to write 17 them. And so I don't know if anybody wants to look at it and 18 see if there's any gratuitous side effects in there. It was 19 mostly, I remember, a discussion of cases from other 20 jurisdictions and had very little to do with the facts of this 21 case. 22 Okay. So, Mr. Smith, as long as you approach it 23 that way, I'm going to overrule the Defendant's objections to 24 asking him that he was a party, he's been dismissed out, that 25 is still subject to appeal, and he's still got a pending claim 19 1 against Wesbecker, because it's all factually true. Let's ask 2 him to come in and take some testimony about what the expected 3 answers will be about indemnity. And if you want to ask him 4 questions about his qualifications to express an expert 5 opinion, you can do that, also. 6 (MS. PREWITT LEAVES AND REENTERS CHAMBERS 7 WITH LEE A. COLEMAN, M.D.) 8 JUDGE POTTER: Have a seat, sir. Thank you for 9 coming in. I know you've been asked numerous questions 10 numerous times, but there are a few points that before we 11 start today we kind of need a more detailed idea of what your 12 testimony is going to be so I can make some rulings. 13 Will you raise your right hand, sir. 14 15 LEE A. COLEMAN, M.D., after first being duly 16 sworn, was examined and testified as follows: 17 18 JUDGE POTTER: You want to answer Mr. Smith's 19 questions. 20 21 VOIR_DIRE_EXAMINATION ____ ____ ___________ 22 23 BY_MR._SMITH: __ ___ _____ 24 Q. Doctor Coleman, you and I met day before 25 yesterday, did we not? 20 1 A. That's correct. 2 Q. And we met in your attorney's office here in 3 Louisville, Kentucky? 4 A. Yes, sir. 5 Q. At that time you advised me that you had spoken 6 with the lawyers from Lilly previous to our conversation; is 7 that correct? 8 A. I don't recall saying that, but I have. 9 Q. All right. And when was the last time that you 10 spoke with lawyers from Lilly? 11 A. I met with Mr. Stopher approximately -- I can't 12 remember the exact date -- two or three weeks ago. 13 Q. All right. And before that, had you met with 14 any of the Lilly lawyers? 15 A. I had met with Mr. Stopher, I think, right -- a 16 few days prior to the start of the trial. 17 JUDGE POTTER: That was two or three weeks ago, 18 wasn't it? 19 Q. In this meeting that you had two or three weeks 20 ago, who was present at the meeting? 21 A. Well, there's been two meetings. 22 Q. I'm talking about the one two or three weeks 23 ago, the most recent one. 24 A. The most recent one was my attorney Greg Bubalo, 25 myself, Mr. Stopher and one of his associates I can't 21 1 remember. 2 Q. All right. And who was present at the earlier 3 meeting a few days prior to the start of trial? 4 A. It was the same people, except there was one 5 meeting that Mr. Freeman -- I think Mr. Freeman was at the 6 very first one, as well. 7 Q. But Mr. Freeman wasn't in the first two 8 meetings; is that right? 9 A. Yeah. He was in one of them. I think he was -- 10 I can't remember. I think he was in the first one, if I'm not 11 mistaken. 12 Q. That would be the one a few days prior to the 13 start of trial; is that right? 14 A. Correct. The first meeting, as I recall, was at 15 my attorney's office; the second meeting, to the best of my 16 recollection, was at Mr. Stopher's office, unless I'm getting 17 them backwards, but that's... 18 Q. The meeting two or three weeks ago while the 19 trial was going on, where was that meeting? Was that meeting 20 at Mr. Stopher's office or in Mr. Bubalo's office? 21 A. As I recall, the most recent meeting was at Mr. 22 Stopher's office. 23 Q. All right. And that was the one two or three 24 weeks ago? 25 A. Probably a couple weeks ago. 22 1 Q. And the first meeting or the meeting -- the 2 first meeting you had with Mr. Stopher was at Bubalo's office; 3 is that right? 4 A. I think I've got those -- I'm trying to remember 5 exactly what the context of each meeting was. I think really 6 the first meeting was in Mr. Stopher's office and the second 7 one was at Mr. Bubalo's office. 8 Q. Well, you've described two meetings; correct? 9 A. Correct. Yes, sir. 10 Q. Now, were there any other meetings that you had 11 with any lawyers from Eli Lilly and Company? 12 A. No, sir. 13 Q. Were there any -- have you had any meetings with 14 anyone from Eli Lilly and Company, any officer, any employee 15 of Eli Lilly and Company? 16 A. You mean, other than detail people? 17 Q. Yes. 18 A. No. 19 Q. When did you last meet with any detail people 20 from Lilly? 21 A. Oh, they come by my office approximately once a 22 month. I'd say a month ago. 23 Q. All right. In any of those meetings have you 24 ever discussed the Wesbecker case in any particulars? 25 MS. PREWITT: I want to enter an objection that 23 1 will prevent any discussion of attorney-client confidences 2 between Doctor Coleman and Mr. Bubalo or anybody else from our 3 firm, but if you're referring to conversations between Eli 4 Lilly employees and Doctor Coleman, I'll allow him to answer. 5 MR. STOPHER: I also object, Judge, on the 6 ground that what was discussed in these meetings about the 7 case is not the point of being here; the point of being here 8 is whether or not there was an indemnity agreement. 9 JUDGE POTTER: That's right. He's leading into 10 it, and his question is -- I really think he was trying to 11 eliminate detail people. 12 Reask your question, Mr. Smith. It's a lead-in. 13 MR. SMITH: Yes. Were any -- in any of the 14 meetings with the detail people that you've described -- and I 15 understand they come around once a month to describe their 16 products and answer any questions that you and they might 17 have. My question is, in any of those meetings with the Lilly 18 detail people, was there ever the subject of Joseph Wesbecker, 19 this lawsuit ever brought up? 20 A. Well, I think, as you recall from reading my 21 depositions, I had said that there was one detail person that 22 knew I was involved in the case and would ask me how it was 23 going and, you know, mostly in a superficial manner. I would 24 not really discuss any particulars of the case. 25 Q. Did those detail people give you any substantive 24 1 information concerning Prozac and whether or not it caused 2 violent-aggressive behavior? 3 A. Well, I think, as I testified earlier, I had 4 gotten a couple of articles that they had given me. I think 5 the ones that I could find I did supply that you-all have 6 copies of. 7 Q. Any other meetings with any employees of Eli 8 Lilly and Company? 9 A. No, sir. 10 Q. Or any attorneys with Eli Lilly and Company? 11 A. No, sir. 12 Q. Telephone conversations? Have you had any 13 telephone conversations with any lawyers from Eli Lilly and 14 Company? 15 A. No, sir. 16 Q. Have you had any telephone conversations with 17 any employees of Eli Lilly and Company? 18 A. No, sir. 19 Q. Has your attorney had any discussions with any 20 of the Eli Lilly lawyers that he's told you about? 21 MS. PREWITT: I'm going to object to that. I 22 think that's covered by the attorney-client privilege, and I 23 instruct the Witness not to answer. 24 MR. SMITH: We have a judge here. 25 MS. PREWITT: That's my objection, Your Honor. 25 1 JUDGE POTTER: Okay. I'm going to sustain the 2 objection. 3 MR. SMITH: Your Honor, my purpose in this is to 4 know what agreements there might be. 5 Well, let me ask you this: Has your lawyer 6 advised you of any conversations he's had or she's had with 7 any of the Lilly lawyers or any Lilly employees? 8 MS. PREWITT: Same objection, Your Honor. 9 JUDGE POTTER: There's a way to get to this. I 10 mean... 11 Q. Do you know -- 12 JUDGE POTTER: I'm going to overrule the 13 objection to him stating whether or not you have or Mr. Bubalo 14 have told him whether or not you've talked to Eli Lilly. Go 15 ahead. 16 A. Okay. What was the question again? 17 Q. The question was, have your lawyers advised you 18 whether or not they talked with any Lilly lawyers or Lilly 19 employees? 20 A. About anything? 21 Q. Right now, yes. 22 A. Well, I know at times my attorney has said that 23 he may have had conversations with Mr. Stopher. 24 Q. Concerning what? 25 A. Concerning the case. 26 1 Q. Concerning what aspects of the case? 2 A. Well, probably were multiple times that he might 3 have -- I know particularly recently, asking how long I would 4 be in the case. 5 Q. How long you would be in the case? 6 A. Well, like, how long would I be here today, 7 would I be here more than today. I know after our meeting the 8 other day he had talked with Mr. Stopher about the content of 9 that meeting. 10 Q. Your lawyer -- did he do this in your presence, 11 call Mr. Stopher and advise you of our meeting? 12 A. Advise me? 13 Q. Advise Mr. Stopher of our meeting and the 14 content of the meeting? 15 A. He discussed some of the meeting with Mr. 16 Stopher in my presence. 17 Q. What did he tell Mr. Stopher in your presence? 18 A. As I recall, in substance -- 19 Q. Exact words that you can remember. 20 A. I can't recall his exact words. 21 Q. Then tell me what you can recall about that 22 conversation. 23 A. Well, what I recall in some substance was 24 talking about the questions that you had asked me, had 25 informed Mr. Stopher of my opinion about the cause and 27 1 informed Mr. Stopher that I felt like this was an act of 2 premeditated murder. And that was pretty much a brief 3 conversation, I would say about five minutes. And also part 4 of that conversation was to ask how long Mr. Stopher might 5 expect to need me today, so I could determine whether I had to 6 cancel any appointments for tomorrow or not. 7 Q. You heard Mr. Bubalo advise Mr. Stopher that you 8 had told me that it was your opinion that Mr. Wesbecker's 9 conduct was the act of a premeditated murder on September 10 14th, 1989; is that right? 11 A. Correct. 12 Q. What else did he say in connection with that? 13 JUDGE POTTER: We're kind of wandering around. 14 We were here on the indemnity topic. I'm not saying you can't 15 ask that when you get to a jury; I just... 16 Q. The conversation that I'm interested in, Doctor 17 Coleman, is has anyone, either your lawyer or anybody from Eli 18 Lilly or any of the people there in any of these two meetings 19 that you've had with Lilly lawyers advised you that they would 20 take care of you with respect to the claims made by the 21 Plaintiffs against you that are still pending on appeal? 22 MS. PREWITT: Same objection as to the 23 attorney-client conversations. 24 JUDGE POTTER: It's overruled. 25 A. No. 28 1 Q. The answer was no? 2 A. No. 3 Q. Has your lawyer advised you of any gentleman's 4 agreement or any type of arrangement that has been made -- 5 MS. PREWITT: Same objection. Sorry. 6 Q. -- with Eli Lilly and Company by and through 7 their lawyers? 8 MS. PREWITT: Same objection. 9 JUDGE POTTER: Overruled. 10 A. You're specifically talking about 11 indemnification? 12 Q. Any kind of arrangement. 13 A. Well, Mr. Stopher had asked me to review his 14 materials, and there was never any kind of formal arrangement, 15 but my hope is that I will be reimbursed for my time. But 16 that's not been formally agreed to. 17 Q. You've done that as a gratuity up to this point? 18 A. I've not been paid anything. It's just my hope 19 that I will be reimbursed for my time. 20 Q. Have you sent Mr. Stopher a bill? 21 A. No, sir. 22 Q. How much time did you spend reviewing that 23 material? 24 A. I haven't added it up. I would say probably 20 25 or 30 hours. 29 1 Q. Did you ask Mr. Stopher why he wanted you to do 2 that? 3 A. Mr. Stopher informed me why he wanted me to do 4 that. 5 Q. That was going to be my next question. What did 6 he tell you as to why he wanted you to do that? 7 A. I think it was my last deposition when I was 8 asked the question was it my opinion that Prozac had caused 9 this incident. I said I didn't think I could give an informed 10 opinion because I didn't have all the information. Mr. 11 Stopher wanted to supply me with the information so I could 12 make an informed opinion. 13 Q. So he asked you to look further into this issue 14 to render an opinion into that connection? 15 MR. STOPHER: Judge, we are so far away from 16 indemnity and everything else. 17 MR. SMITH: This goes to Daubert. This goes to 18 whether or not he's designated. 19 JUDGE POTTER: Let's get the indemnity out of 20 the way. 21 MR. SMITH: Okay. Did Mr. Stopher advise you 22 that this would be of your benefit to review this material and 23 render an opinion? 24 A. No, sir. 25 Q. Did he advise you that this would in any way 30 1 affect whether or not Lilly would consider indemnifying you in 2 any claims that might be made as a result of this lawsuit? 3 A. No, sir. 4 Q. Did he give you any indication or any promise or 5 any hope that cooperation with Lilly would result in some 6 future agreement with Lilly concerning indemnification? 7 A. No, sir. 8 Q. Did you talk with Mr. Stopher last night? 9 A. Did I talk with Mr. Stopher last night; no, sir. 10 Q. Did you talk with anybody representing Lilly 11 last night? 12 A. No, sir. 13 Q. Did you talk with Mr. Stopher yesterday? 14 A. No, sir. 15 Q. Did you talk to anybody representing Lilly 16 yesterday? 17 A. No, sir. 18 Q. Did you talk to Mr. Bubalo yesterday? 19 MS. PREWITT: Objection, Your Honor. 20 Attorney-client privilege. 21 MR. STOPHER: I also object. This thing is way 22 beyond anything that it was called for. 23 JUDGE POTTER: Mr. Smith, we were just trying to 24 nail down the indemnity. You said yesterday you thought 25 because of some letter or something he said in your interview 31 1 that he would answer these questions differently. 2 Q. So Lilly has offered to indemnify you, have they 3 not? 4 A. No, sir. 5 Q. It's your testimony they have not offered to 6 indemnify you in any way? 7 A. No, sir. To my knowledge, they have not offered 8 to indemnify me. 9 Q. Have you discussed this with your lawyer as to 10 whether Lilly has offered to indemnify you? 11 MS. PREWITT: Objection, Your Honor. 12 JUDGE POTTER: Overruled. 13 A. My attorney has not informed me of that. 14 Q. Have you asked your lawyer whether there's any 15 offer to indemnify you? 16 MR. STOPHER: I think it's clearly inappropriate 17 as to his discussions with his lawyer what may or may not 18 happen. It's now been asked about 100 times, and there is no 19 such agreement and there never has been. 20 MS. PREWITT: Join in the objection, Your Honor. 21 JUDGE POTTER: I'm going to overrule the 22 objection to the extent whether -- the question goes to 23 whether he's asked his lawyer to get in touch with Lilly about 24 one. 25 MS. PREWITT: I'm not sure that was the 32 1 question, Your Honor. 2 JUDGE POTTER: Go ahead, Mr. Smith. Reask your 3 question. 4 MR. SMITH: Have you asked your lawyer about any 5 conversations he's had with Lilly lawyers or Lilly employees 6 concerning indemnification? 7 A. No, sir. 8 Q. When was it that you reviewed this material that 9 was provided to you by Mr. Stopher? 10 A. Over the last month. 11 Q. Did you receive the Dear Doctor letter that 12 Lilly sent out to all -- 13 A. In regards to? 14 Q. Indemnification. If you get sued for 15 prescribing Prozac we'll defend you if you prescribed it 16 appropriately? 17 A. As I recall, there was a general mailing letter, 18 something to that effect that I did receive. 19 Q. All right. What did you do with that letter, 20 Doctor Coleman? 21 A. Threw it away. 22 Q. Did you discuss it with your lawyer at any time? 23 24 MS. PREWITT: Objection, Your Honor. Attorney- 25 client privilege. 33 1 JUDGE POTTER: Sustained. 2 Q. Is it your testimony here, Doctor Coleman, that 3 you have no knowledge of any agreement or potential agreement 4 concerning Lilly indemnifying you in any way as per any 5 potential claims arising out of claims either by Mr. Wesbecker 6 or the plaintiffs in this case? 7 A. Correct. And let me clarify that. I mean, I 8 had one -- and I'm not waiving attorney-client privilege, but 9 I had talked with my attorney that I did not want Eli Lilly to 10 indemnify me even if they had ever made an offer -- which to 11 my knowledge they never made an offer -- because I did not 12 feel like that I wanted to, as I would say, be in bed with Eli 13 Lilly. I would not have accepted an indemnification agreement 14 because I didn't feel like I did anything wrong, but none was 15 ever made, to my knowledge. 16 Q. Okay. Regardless, you spent 20 or 30 hours 17 within the last month reviewing material supplied to you by 18 Mr. Stopher? 19 A. Approximately that, if not more. 20 Q. Did you write an opinion to Mr. Stopher 21 concerning your review of this material? 22 A. No, sir. 23 Q. Did you discuss your opinion with Mr. Stopher 24 concerning your review of this material? 25 A. No, sir. I don't think Mr. Stopher has any idea 34 1 what I'm going to say, other than what my attorney had told 2 him the other day. 3 Q. Did you discuss your opinion with your attorney 4 Mr. Bubalo? 5 MS. PREWITT: Objection, Your Honor. 6 Attorney-client privilege. 7 JUDGE POTTER: Overruled. 8 A. None other than what we talked about two days 9 ago. 10 Q. And you first formed this opinion that you 11 didn't feel Prozac was the cause of Mr. Wesbecker's violent 12 attack on September 14th, 1989, until after you had reviewed 13 this material supplied to you by Mr. Stopher; is that right? 14 A. Well, I think as you recall from my testimony at 15 the coroner's inquest that was my sense at that time, that 16 Prozac had nothing to do with it; after reviewing the 17 materials that Mr. Stopher has given me, that's confirmed my 18 opinion. 19 Q. But as I understand it, you didn't have any 20 basis for any opinion, and I think you said, "I'm not sure 21 because I don't know at this time. I don't think it had 22 anything to do with it, but I can't give a professional 23 opinion;" is that correct? 24 A. That's correct. 25 Q. But after you've reviewed this material that was 35 1 supplied to you by Mr. Stopher, you now feel that you can give 2 a professional opinion? 3 A. That's correct. 4 Q. And you told me about that day before yesterday; 5 right? 6 A. Yes, sir. 7 Q. And you did not provide me with the information 8 that Mr. Stopher had provided you? 9 A. No. You didn't ask for it, either. 10 Q. I didn't ask you that and you didn't provide it 11 to me, did you? 12 A. No, sir. 13 Q. You didn't tell me at that time that Mr. Stopher 14 had provided you any material, did you? 15 A. No, sir; and you didn't ask. As you recall, we 16 made the same offer to you, did you have any materials you 17 would like for me to review. 18 Q. Did you -- what material did you review that was 19 provided to you by Mr. Stopher? 20 A. Mr. Stopher provided me with chronology that 21 they had come up with based on excerpts from various people's 22 depositions. One chronology started from when I first started 23 seeing Mr. Wesbecker in 1987, the second chronology dating 24 back to when Mr. Wesbecker was first born. He had a list of 25 weapons purchases and dates and materials. They had a 36 1 chronology of threats made by Mr. Wesbecker. I was supplied 2 with a videotape that they had prepared that they were going 3 to possibly present at trial. Mr. Stopher had a schematic of 4 the Standard Gravure plant where he went through the course 5 that Mr. Wesbecker took and who he shot and what his opinion 6 was why those shootings took place in that order. 7 Q. You mean, what Mr. Stopher's opinion was or -- 8 A. Correct. What Mr. Stopher's opinion was. 9 Q. All right. 10 A. I was given I think four articles concerning 11 Prozac in relation to suicidality. 12 Q. What four articles were those, sir? 13 A. I have them with me. Three of them were done by 14 Eli Lilly. 15 Q. All right. 16 A. And then I did some -- I reviewed my own notes, 17 my own chart, my previous depositions. But as far as the 18 materials Mr. Stopher -- now, since then I have received but 19 not reviewed transcripts of proceedings in the trial, but I 20 did not review those. 21 Q. Anything else? 22 A. To the best of my knowledge, that's all that 23 he's supplied me. 24 Q. All right. And it was after you reviewed that 25 that you came to your final opinion in this matter? 37 1 A. Yes, sir. 2 Q. And when did you complete reviewing that 3 material? 4 A. Probably by this weekend. 5 Q. All right. 6 JUDGE POTTER: Anything else, Mr. Smith? 7 MR. SMITH: Can I confer with Ms. Zettler for a 8 second? 9 JUDGE POTTER: Yes. Sure. 10 MS. ZETTLER: Can we go outside for a second, 11 Judge? 12 (RECESS) 13 JUDGE POTTER: Anything else, Mr. Smith? 14 MR. SMITH: Yes. Just a couple other questions, 15 Your Honor. 16 JUDGE POTTER: Doctor, I remind you, you're 17 still under oath. 18 Q. How much per hour do you intend to charge for 19 your review of this material? 20 A. Two hundred. 21 Q. So you've spent 20 hours; that would be $4,000? 22 A. If 20 hours is -- 23 Q. You said 20 to 30 hours; $4,000 or $5,000, I 24 assume? 25 A. If that's a fair estimate. I've written down 38 1 every day how much time I've spent but I've not totaled that. 2 Q. Did you bring that with you? 3 A. No, sir; I did not. 4 Q. But you maintain that at some location? 5 A. Yes, sir. 6 Q. Do you have any particular experience in 7 violent-aggressive behavior, the study of why people become 8 violent or aggressive, other than your general psychiatric 9 training? 10 A. I've not done any specific individual research 11 on that; no, sir. 12 Q. Attended any seminars or any presentations? 13 A. Specific to violent-aggressive behavior? 14 Q. Yes. 15 A. No, sir. 16 Q. And its connection with psychopharmacological 17 drugs? 18 A. No, sir. 19 Q. Have you asked for any more information on 20 Prozac, any more scientific information on Prozac? 21 A. From? 22 Q. From Lilly. 23 A. I did an independent database search myself. 24 Q. MedLine search? 25 A. Yes, sir. 39 1 Q. And did you do that from the medical school 2 library or do you have MedLine at your office? 3 A. I can access it from home. 4 Q. And how much time did -- did you do that in 5 connection with looking into this issue? 6 A. Yes, sir. 7 Q. And when did you do that, sir? 8 A. I don't recall. It was after I had met with 9 Mr. Stopher. Once I realized that three of the articles he 10 had given me were either sponsored or done by people from Eli 11 Lilly, I did a database search myself. 12 Q. And did you get other articles? Is that where 13 you got the one other article? 14 A. No. That was one article that Mr. Stopher had 15 given me that was not Eli Lilly. Basically, I just read the 16 abstracts of the articles that I obtained. 17 Q. All right. Have you looked at any other medical 18 records other than those medical records that you had at the 19 time you gave your deposition concerning Mr. Wesbecker? 20 MS. PREWITT: Which deposition are you referring 21 to? 22 Q. Any of the depositions. 23 A. Nothing other than that might have been shown me 24 during the course of a deposition. 25 Q. Did Mr. Stopher provide you medical records 40 1 concerning Mr. Wesbecker? 2 A. Yes, sir; he did. One of the things he did 3 supply me was a medical chronology of Mr. Wesbecker. 4 Q. But it was arranged as they had prepared it; is 5 that right? 6 A. Yes, sir. In chronological fashion. 7 Q. Did that have more medical chronological 8 information than you had when you were treating Mr. Wesbecker? 9 A. Yes, sir. 10 Q. Much more detail? 11 A. Yes, sir. 12 Q. Have you talked with any of Lilly's other 13 experts in this case? 14 A. I don't even know who their other experts are, 15 so, no, sir. 16 Q. Doctor Greist, Doctor Schwab, Doctor Granacher 17 or Doctor Leigh Thompson? 18 A. About this case? 19 Q. Or about issues of Prozac in any form. 20 A. No, sir. 21 Q. Do you know any of those gentlemen? 22 A. Yes, sir. I know Doctor Schwab. 23 Q. Have you talked to Doctor Schwab about this 24 case? 25 A. No, sir. 41 1 Q. Doctor Schwab I believe is here, isn't he? 2 A. He's here locally; yes, sir. 3 Q. You know him just by virtue of being 4 psychiatrists in the same city? 5 A. He was my supervisor also when I was in 6 training. 7 Q. We would like to get copies of those articles 8 that Mr. Stopher provided you so we'll know exactly what 9 you've seen. 10 MS. ZETTLER: Which videotape? 11 Q. Which videotape did you see, or did you see two 12 videotapes? 13 A. I only saw one. 14 Q. Which one was it? One has to do with Mr. 15 Wesbecker's life and another is an interesting story about 16 Prozac. 17 A. This one was on Mr. Wesbecker's life. 18 Q. All right. 19 JUDGE POTTER: Does anybody else have any 20 questions they want to ask? 21 MR. STOPHER: No, Judge. 22 JUDGE POTTER: Thank you very much, Doctor. If 23 you would just wait outside. You don't have to wait outside; 24 you can go out to the foyer and have a cigarette and walk 25 around. 42 1 DOCTOR COLEMAN: I won't have a cigarette but... 2 (DOCTOR COLEMAN AND MS. PREWITT LEAVE CHAMBERS) 3 JUDGE POTTER: Mr. Smith, he's going to be your 4 first witness today? 5 MR. SMITH: Yes, sir. 6 JUDGE POTTER: So it will be right around 9:00, 7 we hope. Is there anything else, Mr. Smith? 8 MR. SMITH: Absolutely. This is the most 9 patently, manifestly unfair thing I've had -- 10 JUDGE POTTER: Let's take them up one at a time. 11 The first thing is do you get to ask the question: "Isn't it 12 true that Eli Lilly has agreed to hold you harmless." On what 13 I've heard today, if you want to ask him about his Dear Doctor 14 letter I think you maybe can, but other than that, why do you 15 have a basis to ask him about anything else? 16 MR. SMITH: His answer I guess is going to be 17 no; that's what I gleaned from that, so I probably wouldn't 18 ask him that. 19 JUDGE POTTER: Well, you wouldn't be the first 20 lawyer and even the first lawyer in this case to ask a 21 question to get the question in rather than the answer, so I'm 22 going to sustain asking him about whether Eli Lilly has agreed 23 to indemnify him in this case. 24 Now we're down to I guess revisiting whether 25 he's an expert that can't be called because he wasn't 43 1 identified or whether he can't testify on that topic because 2 he's not qualified or his science is junk or whatever. What 3 do you want to say on those? Let me get -- the background is 4 you are going to call him and ask him why he thinks Mr. 5 Wesbecker was -- went off the edge when he saw him on the 6 11th; right? 7 MR. SMITH: I'm going to ask him basically what 8 he based his statements in his medical records on concerning 9 his observations. He said in his medical records, 10 "Deterioration, question Prozac, cause." I am not going to 11 ask him why Joseph Wesbecker did what he did on September 12 14th, 1989, and whether or not that was related to Prozac. 13 JUDGE POTTER: But you are going to ask him 14 whether or not the deterioration he saw was in some way 15 related to Prozac? 16 MR. SMITH: Was it his impression at the time 17 that his condition that he observed on September 11th was 18 related to the Prozac. 19 JUDGE POTTER: And I take it at some point he 20 has testified that he believes it is; is that right? 21 MR. SMITH: Yes. Yes. 22 JUDGE POTTER: I mean, that's not something that 23 happened at an office, that's something that we'll hear, 24 "Doctor, do you remember giving your deposition," if he 25 changes his testimony? 44 1 MR. SMITH: Right. 2 JUDGE POTTER: Okay. Go ahead. 3 MR. SMITH: Now, we have sent out Rule 26 4 interrogatories to Lilly to designate the experts and to 5 provide expert opinions that they might have and to provide 6 the substance of their opinion even if they haven't written a 7 report. The Court has entered orders requiring the parties to 8 provide to the other parties any experts that they have -- the 9 identity of any experts, the substance of their opinions and 10 things of that nature. Lilly has not -- Lilly has obviously 11 hired this man, provided this man material and asked him 12 specifically to render an opinion on the question of whether 13 or not Wesbecker's conduct on September 14th, 1989, was 14 related to the use of Prozac. 15 By all rules of procedure, by all rules of the 16 Court, by all rules of fairness and common sense, a party 17 cannot hire an expert except an independent expert during the 18 trial, provide him material that he's never seen, both 19 scientific data as well as factual data, and ask him to render 20 an opinion on that without disclosing it to us, without 21 advising us that he's going to render that opinion and the 22 basis of that opinion. Had I not asked him that this morning, 23 I would have never known the material that he had reviewed. I 24 was never advised by the Defendants that we have provided 25 Doctor Coleman this information. 45 1 JUDGE POTTER: Okay. Mr. Stopher, let me ask 2 you this: We'll all agree, will we not, that if this guy 3 lived in Chicago and had never seen Mr. Wesbecker he wouldn't 4 be allowed to testify today? 5 MR. STOPHER: Oh, I would agree to that, Judge. 6 But if I may respond to some of the things that he said, 7 Number One, on July the 26th when we filed the one and only 8 expert witness disclosure, we identified treating physicians. 9 We said, "Although they may not technically be considered 10 Lilly expert witnesses and therefore not subject to the 11 Court's order, Lilly reserves the right to call any or all of 12 Joseph T. Wesbecker's treating physicians as witnesses and, 13 additionally, it may inquire of them as to any opinions that 14 they may have concerning Joseph T. Wesbecker's mental 15 conditions and actions." 16 Now, we did list, therefore, Doctor Coleman as a 17 technical expert witness. I'm not sure which category he fits 18 in because he's a party in the other case, he's not been 19 dismissed in this case. But to be absolutely certain that Mr. 20 Smith was on notice that we did intend to ask Mr. -- Doctor 21 Coleman opinions about Joseph T. Wesbecker's mental conditions 22 and his actions, we filed this pleading as part of the expert 23 witness disclosure. 24 The second thing is, Judge, that Mr. Smith has 25 met with Doctor Coleman along with Mr. Foley. They could have 46 1 scheduled that meeting at any time that they wanted to. They 2 met with him day before yesterday, and Doctor Coleman has said 3 very candidly that they would have taken any material that 4 they wanted to supply to him and review it. He has also 5 testified before you that he did not tell me what his opinions 6 are and that I will hear them for the first time on the stand 7 from him. 8 The only information I had was that Mr. Smith 9 had met with him; that he was going to testify about the 10 things that he had already testified about in three 11 depositions; that he was going to be here on Wednesday all 12 day; and that his opinions concerning Mr. Wesbecker would be 13 available for everybody at that time. He is independent, he 14 is not under my control; I cannot make this man say or do 15 anything, and it is grossly unfair to the Defendant to have 16 Mr. Smith from his opening statement until right now contend 17 that Doctor Coleman is going to say that Mr. Wesbecker did 18 this because he took Prozac; that the record in Doctor 19 Coleman's records clearly indicates that and that there's a 20 question mark there, and that this Witness should be precluded 21 from giving his opinion as to whether or not there's a causal 22 connection. 23 He is a board-certified psychiatrist; he has 24 reviewed materials that are in Mr. Smith's repertoire of 25 things that he's seen; it is critical to the case; and this is 47 1 not any sort of surprise to anybody. He's been listed and 2 identified as a matter of precaution. I can't do it any 3 better than that. 4 JUDGE POTTER: Well, he is maybe somewhat of a 5 surprise. But let me just tell you where I am, Mr. Smith. It 6 strikes me that you are calling this witness as a witness to 7 say either on the stand or through a prior deposition or 8 through his records that Prozac caused the deterioration that 9 he observed on September 11th. And without more, to my way of 10 thinking, that is a very strong testimony that Mr. Wesbecker 11 did what he did on the 14th because of Prozac. I mean, just a 12 layman thinking hmm, hmm, hmm, with their own common sense 13 would try and bridge that gap and bridge it in your favor. 14 And so I guess I have a problem with not letting them say, 15 "But if you knew this and this and this and this and this and 16 this, what would your opinion be." 17 MR. SMITH: The problem is, is that -- well, 18 Number One, I was never advised by them that they were hiring 19 him as an expert on this issue. You see, this is what we have 20 lawsuits about. This is why we hire experts is because 21 witnesses can be witnesses and witnesses can be expert 22 witnesses. And when you go from one spot to another spot, you 23 better comply with the rules of civil procedure, which 24 requires specific things which this Court ordered in this 25 case. And by virtue of me simply calling him as a witness 48 1 doesn't mean I open him up to being an expert witness on any 2 other issue, especially causation. I'm not going to ask 3 him -- 4 JUDGE POTTER: Well, you already have, Mr. 5 Smith, when you put in his record that said -- 6 MR. SMITH: No. No. 7 JUDGE POTTER: -- Prozac cause, question mark. 8 MR. SMITH: His record talks about what his 9 mental state was on September 11th, 1989; it does not speak to 10 why he did what he did on September 14th, 1989. That requires 11 expert testimony. And to do that, to say he can bridge that 12 gap simply by virtue of what he said on September 11th, 1989, 13 doesn't make sense, especially when they have taken him after 14 we have taken three depositions of him in this case and 15 provided him additional information, which is work-product 16 information that they designed; when this man says I intend to 17 bill him for the 20 or 30 hours; when he goes back and does 18 additional research, does a MedLine search to inquire into 19 these matters. It's manifestly unfair that he can get up and 20 testify about this, which is a totally -- Judge, it is -- 21 there is no relationship. 22 It is evidentiary what Doctor Coleman put in his 23 record on September 11th, 1989, but their entire defense in 24 this case is not what he put in his records on September 11th, 25 1989, is inaccurate, but that that type of action doesn't 49 1 cause somebody to commit a murder of this nature. And that 2 requires somebody who is an expert to say, "I can look at 3 this, I can look at the factual circumstances of his entire 4 life -- which they have done -- and I can draw on this 5 conclusion. Plus, I have experience as one who studies 6 violent-aggressive behavior. I have experience as one who is 7 knowledgeable concerning serotonin, who is knowledgeable 8 concerning the effects of Prozac and what its actions are." 9 It is absolutely two separate questions. What 10 his observations were on September 11th, 1989, is totally 11 different from crossing that bridge to what caused him to do 12 what he did on September 14th, 1989. If -- I mean, if he's 13 qualified as an expert to render an opinion on causation, then 14 he has to be designated. We have to know what he's basing his 15 opinion on. We have to know what he's done. I mean, 16 otherwise -- I mean, that's the entire purpose of the rules of 17 procedure and this Court's order, is to give us some notice of 18 what kind of evidence we're going to have. We had the notice 19 of what his opinions were on September 11th, 1989. But 20 here -- 21 JUDGE POTTER: Well, if I understand it 22 correctly, you asked him in his deposition did he have an 23 opinion about whether Prozac caused it on the 14th. 24 MR. SMITH: And he said he didn't think it was, 25 but he didn't know. He doesn't have this information. He 50 1 admits freely, "I didn't have information available to make a 2 decision on that." Somebody, if they give him more 3 information and they're going to make him a causation on the 4 ultimate issue, we've got to know about it. We have to know 5 about it. 6 I'm not prepared to cross-examine him on all of 7 this material that he's been supplied. I haven't even seen 8 it. I haven't had an opportunity to review the literature 9 he's had; I haven't had an opportunity to know what research 10 he's looked at. There may have been research he looked at 11 that supports our position, but I haven't had an opportunity 12 to question him about that at all. 13 JUDGE POTTER: Mr. Stopher, is there anything 14 you want to say before I rule on that? 15 MR. STOPHER: No, Your Honor. I think you know 16 all the facts. 17 MR. SMITH: I'll remind the Court that they -- 18 and I hate to keep after this -- they've designated three 19 separate causation experts. 20 JUDGE POTTER: We all agree that if the guy came 21 from Chicago he wouldn't be here. The problem is, as I see 22 it, is he's still -- he was a party in this lawsuit, still a 23 party in part of this lawsuit, and was the treating physician 24 at the time this happened, and that you're going to call him 25 to express an opinion on something that, at least to me, is 51 1 very indicative of a jury believing he has an opinion that 2 Prozac caused him -- caused this man to do it on the 14th as 3 well as the 11th. Okay? And what they have done, as I see 4 it, is taken what is potentially an adverse witness and tried 5 to woodshed him. 6 MR. SMITH: And hasn't told us about it. Hasn't 7 given us any information about that. 8 JUDGE POTTER: That's very true. 9 MR. SMITH: And made this man expect to be paid 10 for 20 or 30 hours of work that he's done. There is no 11 distinction in this man and any other expert they have -- 12 JUDGE POTTER: No. No. 13 MR. SMITH: I'm sorry. It's a surprise. 14 JUDGE POTTER: What do you say about this, Mr. 15 Stopher, that if he had gone out -- it would be one set of 16 circumstances if he had gone out and done this research on his 17 own and rummaged around, or even Ms. Prewitt or Mr. Bubalo had 18 said, "Doctor Coleman, they're going to make you look foolish; 19 you'd better get out and come up with an opinion," but didn't 20 you cross some kind of line when you sent him all this stuff 21 and met with him and showed him videos? Weren't you under 22 some obligation maybe to say, "Mr. Smith, you ought to know 23 that we've been dealing with Doctor Coleman and this is what 24 he's been shown and we think he's going to express this 25 opinion"? 52 1 MR. STOPHER: Judge, first of all, I did 2 identify him as an expert. 3 MS. ZETTLER: That's different. 4 MR. STOPHER: Can I not -- 5 JUDGE POTTER: Yes, Ms. Zettler, let him finish. 6 MR. STOPHER: Which it's been represented to you 7 on several occasions that we didn't do that, and we did. The 8 second thing is, Your Honor, that at the deposition Doctor 9 Coleman said that he had opinions about causation that he had 10 expressed at the coroner's inquest, and Ms. Zettler 11 cross-examined him at great length about that, and then he 12 said that in order to render a definitive opinion that he 13 would need factual information. In response to that request, 14 on the record in this case I supplied him some factual 15 information. 16 Now, the other side met with him. Mr. Smith and 17 Mr. Foley went and met with him, and they could have scheduled 18 that meeting and did schedule it for their convenience. As a 19 matter of fact, Your Honor, at that time Doctor Coleman says, 20 "I'll review anything that you want me to review." 21 Now, the final thing that I want to point out to 22 the Court is I never asked Doctor Coleman to do any research, 23 and I'm sure that he will testify to that; if he did a MedLine 24 search, he did that as an adverse party or a potentially 25 adverse party on his own. I have not agreed to indemnify 53 1 Doctor Coleman. If he is representing to this Court that I am 2 bound to pay him, I don't think that's true. 3 JUDGE POTTER: I don't know whether you are or 4 not, but he did testify that he's hopeful that he'll get paid. 5 MR. STOPHER: The final thing that I want to 6 remind the Court of, this is a treating physician. And in 7 every case that I'm aware of, Your Honor, a doctor is entitled 8 who is the treating physician to not just testify about his 9 treatment of the patient that is under consideration; that 10 doctor is also permitted to give opinions about the future and 11 about the prognosis, and in this case this is no different. 12 It would be very, very misleading to this jury to allow him to 13 express his opinions on the 11th and not allow him to express 14 his opinions on the 14th. It would just be devastating. 15 MR. FOLEY: Judge, I want to say one thing here. 16 At no time were we ever offered any material to review. I 17 arranged the meeting and Mr. Bubalo told me -- we tried to 18 even reschedule the meeting. I was told to be there at 5:30 19 and we had no more than an hour. He was not made available to 20 us. 21 JUDGE POTTER: Maybe I can't get past the 22 inference I would be tempted to make if I were a juror or the 23 inference that I feel would be argued if I were a juror, which 24 is that if Prozac caused him on the 11th, Prozac caused him on 25 the 14th. And so I think it's unfair not to let them take him 54 1 the second step. 2 Mr. Smith, if at any time you want to say, 3 "Doctor Coleman, have I ever seen that? 4 "No. 5 "Can you produce it? 6 "Judge, can we take a recess to look at it," you 7 know, you'll be free to do that. We'll take as long a recess 8 as you want to get it. 9 You know, on a simplistic basis, I mean, this is 10 no different -- it is different but it's not a lot different 11 from mailing copies of the accident reports to various 12 witnesses you hope to call, hoping they'll read the accident 13 report and that will kind of buck them up a little bit, 14 assuming you've got a favorable accident report. 15 MR. SMITH: This is just -- I mean, this is a 16 complex -- 17 JUDGE POTTER: It is. 18 MR. SMITH: We have spent hundreds and thousands 19 of dollars preparing this case for trial. We have gone from 20 Seattle to Houston to Maine to Boston, everywhere in this 21 country to develop the facts and the expertise in this area. 22 They have designated and are bringing in three different 23 expert witnesses. They have the entire, entire resources of 24 Eli Lilly and Company to supply them information. We had a 25 right to rely on what they told us about who their experts 55 1 were. We had a right to rely on it. If I hadn't asked to see 2 Doctor Coleman, I wouldn't know it today. They never told me 3 any of this. 4 They have, in effect, circumvented the rules of 5 procedure; they've circumvented the rules of this Court in 6 supplying him this information, and now he's their expert 7 as -- I mean, it is just so unfair. I mean, I have probably 8 10,000 questions I could direct to this guy about what his 9 qualifications are to render this, how much he did, what he 10 looked at, what he didn't look at. I mean, we've been 11 spending days and weeks, from nine A.M. to five P.M., deposing 12 their experts and deposing their scientists on this. 13 JUDGE POTTER: It is not a ruling I am pleased 14 with, Mr. Smith, but it's one that I'm not going to change. 15 I will tell you this: If you want to -- I mean, quite 16 frankly, if you want to take a day's recess in the trial, go 17 take his deposition today and then put him on tomorrow, I'll 18 order that, because it's not a ruling I'm happy with but 19 it's -- there's no question but what the better practice would 20 have been for them to give you some notice of what they were 21 doing. 22 MR. SMITH: Isn't that the requirement? It's 23 not a question of better practice; isn't that a requirement of 24 the rules, Your Honor, to supply another party with facts upon 25 which their expert is going to testify, to require them to 56 1 identify their expert? 2 JUDGE POTTER: Well, Mr. Smith, in my opinion, 3 you are calling him somewhat as an expert witness because 4 he's -- 5 MR. SMITH: Let me ask you this: What if I 6 called him and simply said, "Did you treat Joseph Wesbecker 7 and are those your medical records in connection with that 8 care and treatment?" 9 JUDGE POTTER: When you put in the medical 10 record that said Prozac the cause, you put his views in issue 11 on that. If you want to meet with Ms. Zettler -- 12 MS. ZETTLER: Yes. 13 MR. FOLEY: We have a right to know before he 14 made that move and put those records in what that was going to 15 create. 16 JUDGE POTTER: Folks, I may be right; I may be 17 wrong, I know. You know, obviously you're unhappy and I'm not 18 particularly excited about the way this came up. But I have 19 to rule; I've ruled; I'm not going to change it. And, you 20 know, you'll have to decide yourself if you would like to take 21 a recess for a half day or a day and take his deposition or, 22 you know, put on -- who is it, Heiligenstein, and quit early 23 today and call him tomorrow. You-all are free to do that; I 24 will do that. You want to take some time and talk about how 25 you want to proceed from here? 57 1 MS. ZETTLER: Yes. 2 MR. SMITH: I need to take some time and compose 3 myself. 4 JUDGE POTTER: We'll take a half-hour recess. 5 MS. ZETTLER: Can I ask one question, Judge? 6 Should we just assume now that we need to go out and take the 7 deposition of every single treating physician of Joseph 8 Wesbecker's in the off chance that they may call them and 9 spring this on this? 10 JUDGE POTTER: Mr. Stopher, have you-all 11 supplied any other information to any other treating 12 physician? 13 MR. STOPHER: No, sir, Your Honor. 14 MS. ZETTLER: I believe the rule here in 15 Kentucky is the same as in Illinois, and that is that you can 16 ask a treating physician an opinion within the context of his 17 treatment of that patient until you designate them to give 18 further opinions outside his treatment. Am I correct in that 19 understanding? 20 JUDGE POTTER: To me, this is part of his 21 treatment. I mean, as I said, I've ruled. You-all -- we'll 22 take a half-an-hour recess. 23 (RECESS) 24 JUDGE POTTER: Mr. Smith, are there any motions 25 or anything else you want to say before we go back out? 58 1 MR. SMITH: We would again request the Court to 2 reconsider its previous ruling concerning allowing Doctor 3 Coleman to testify with respect to his opinion on what caused 4 Joseph Wesbecker to do what he did on September 14th, 1989, 5 for the reasons expressed earlier this morning. 6 JUDGE POTTER: I thought about it on the break, 7 and I'm not going to change my ruling. 8 MR. SMITH: The Court had advised that he would 9 allow us to take some time with this matter. We feel like 10 there's probably nothing that can really be done to cure the 11 tragic and unjust surprise that has been visited on us at this 12 time. 13 JUDGE POTTER: Okay. 14 MR. SMITH: We would, however, like at least an 15 opportunity to know what specifically Doctor Coleman has 16 reviewed, to have the opportunity to look at that briefly to 17 see what it is that he's reviewed. We would like the 18 opportunity to do that this morning and to reconvene with 19 Doctor Coleman this afternoon at one or two. 20 We would like also that all counsel be 21 admonished not to discuss this case with Doctor Coleman in any 22 way, form or fashion, either directly or indirectly, and at 23 least have the opportunity to see what this man has reviewed 24 in order to express his opinion that's going to be obviously 25 favorable -- it was provided by Lilly and is going to be 59 1 obviously favorable to Lilly. 2 JUDGE POTTER: Mr. Stopher, do you have 3 available everything that you gave to Doctor Coleman? 4 MR. STOPHER: Yes, Judge. I think all of it has 5 been given to Paul, but I'll be glad to try to reassemble it. 6 I think the best place to get it would be from him, to be 7 absolutely -- 8 JUDGE POTTER: Did he keep the video? 9 MR. STOPHER: No, sir. 10 JUDGE POTTER: Did he keep copies of the time 11 line and that kind of stuff? 12 MR. STOPHER: Correct. 13 JUDGE POTTER: Let's take a break while I go and 14 talk to Mr. Coleman. 15 (JUDGE POTTER LEAVES THE ROOM AND REENTERS, 16 ALONG WITH MS. PREWITT AND DOCTOR COLEMAN) 17 JUDGE POTTER: Doctor Coleman, do you have with 18 you absolutely everything that Mr. Stopher left with you after 19 he gave you the material that you've reviewed? 20 DOCTOR COLEMAN: No, sir. 21 JUDGE POTTER: You don't? 22 DOCTOR COLEMAN: No, sir. 23 JUDGE POTTER: What don't you have? 24 DOCTOR COLEMAN: Probably most of it. 25 JUDGE POTTER: Where is it? 60 1 DOCTOR COLEMAN: It's at my home. 2 JUDGE POTTER: Not personal, but where do you 3 live? 4 DOCTOR COLEMAN: In the east end, about 15 5 minutes away. 6 JUDGE POTTER: Okay. Doctor Coleman, this is 7 the current plan. If this material had been given to you, you 8 know, before you gave your deposition, the Plaintiffs would 9 have asked you what you had reviewed and what you saw and you 10 would have told them and they would have had an opportunity to 11 look at it before you took the stand. Because all of this 12 happened fairly quickly, they have not had an opportunity to 13 look at it, and they have asked me could they have an 14 opportunity to go over, see what you had in your possession, 15 you know, that you used in forming your opinion, and I've told 16 them I would give that opportunity. Would it be -- and I 17 think as far as your planning goes, you might -- you might as 18 well plan on canceling your appointments for today. I don't 19 know whether you already had done that or not. 20 DOCTOR COLEMAN: For today I had, yes. 21 JUDGE POTTER: I'm going to recess the trial 22 till 1:00 and give them an opportunity to go over what you 23 have done, and you can tell me if it will be a great effort 24 for you to go home and get the stuff and bring it back here; 25 if not, Mr. Stopher can try and reassemble it from his records 61 1 but, quite frankly, it will be just neater and cleaner if you 2 did it. Is that a problem for you? 3 DOCTOR COLEMAN: I don't think so. I should be 4 able to put my hands on it. Some of it I may not be sure 5 whether it was something that I had or that he had given to 6 me. 7 JUDGE POTTER: The other thing I was going to 8 ask you that will probably save a lot of time once you get on 9 the stand is if you would collect up anything else that you've 10 got that you've looked at, that you've considered, that has 11 anything to do with this, and put it in a stack called "other 12 stuff" and bring that with you, too. Okay? Because the 13 question -- after you go through what Mr. Stopher has shown 14 you, the next question is going to be is what other stuff have 15 you looked at, all right, or considered or whatever. And it 16 will just save a lot of time if Mr. Smith knows what the X-Y-Z 17 article is, all right, rather than you and him kind of 18 figuring it out on the stand. 19 It's 10:00. Could I ask you to, you think, 20 what, quarter of 11; why don't we do it till 1:30, and if you 21 could say -- where would you like -- where are you parking 22 your car? 23 MS. PREWITT: Can't he just pick it up from our 24 office? 25 JUDGE POTTER: If you could have it in Ms. 62 1 Prewitt's office by 11:00, they'll pick it up there, and if 2 you could plan to be here at 1:30 to start your testimony. 3 MS. PREWITT: Should we make some type of a 4 listing of what we've provided? 5 JUDGE POTTER: You can if you want to. 6 MS. PREWITT: I mean, it won't be a copy; it 7 will be the original. 8 JUDGE POTTER: Right. You can make a list of 9 it; you can make a copy of it and keep it for your own file; 10 you can number it, whatever you want to feel comfortable, but 11 they'll be over at your office. 12 And the only thing, Mr. Stopher, that you showed 13 him that you took back was the video; is that right? 14 MR. STOPHER: I think that's right. 15 MR. SMITH: Which video was it? 16 DOCTOR COLEMAN: I still have the video. This 17 is the video on Mr. Wesbecker's life. 18 JUDGE POTTER: Oh, okay. The other video is on 19 Prozac, I guess, or I don't know. They were described to me 20 and I've forgotten what the two of them were. 21 MR. SMITH: You have some material with you now, 22 Doctor. I see a book, I see a number of legal pads. 23 JUDGE POTTER: Can you leave that with Mr. Smith 24 now? 25 MS. PREWITT: These are his original medical 63 1 records. 2 DOCTOR COLEMAN: These were all records from 3 previous depositions; these are what was termed my 4 contemporaneous notes. They've had copies of this. 5 JUDGE POTTER: That's stuff you had when you 6 took your previous depositions? 7 DOCTOR COLEMAN: This was my record and the 8 other notes. 9 JUDGE POTTER: Leave the other stuff with them. 10 MS. PREWITT: This is original records, as well. 11 MR. SMITH: This is what? 12 MS. PREWITT: His original records. They've 13 already been produced. 14 MR. SMITH: And you've got the DSM-III-R and 15 what is in this? I just want to know what you have, Doctor, 16 is what I want. I want to know what you have. 17 DOCTOR COLEMAN: This is the typed version of my 18 chart notes that I've written, when my prescriptions and 19 things were, that I would use as a reference. These are typed 20 versions of the contemporaneous notes. This was a copy from 21 the -- I guess the autopsy on the toxicology report on Mr. 22 Wesbecker. 23 MR. SMITH: When did you get that and who 24 supplied that to you, sir? 25 DOCTOR COLEMAN: This was sent to me by the 64 1 coroner at some point, I mean, early on. But you're welcome 2 to keep all this. This is one thing Mr. Stopher -- these are 3 two things Mr. Stopher had supplied to me and there are 4 several articles. 5 MR. SMITH: We want to get that now. 6 JUDGE POTTER: He's going to leave that here 7 now. 8 MS. ZETTLER: Can we get a definition of exactly 9 what he's been provided by Mr. Stopher? 10 JUDGE POTTER: He's going to give you a stack 11 called "Other" and "What Mr. Stopher gave me" and two things 12 out of there go in the Mr. Stopher stack. 13 MS. ZETTLER: But as far as if he's actually 14 looked at deposition testimony outside of what -- frankly, Mr. 15 Stopher was talking with Doctor Coleman at the break, and we'd 16 like to know at this point exactly what he has seen. 17 JUDGE POTTER: Doctor Coleman, will you pull out 18 the two articles that Mr. Stopher gave you or everything out 19 of that stack that Mr. Stopher gave you? 20 DOCTOR COLEMAN: I know these were two articles 21 Mr. Stopher had given me and these were two of the things that 22 he had supplied. I think the other two articles are ones 23 that -- was one that I had. I don't think Mr. Stopher gave me 24 that one. 25 JUDGE POTTER: If you'll have the other two 65 1 stacks at your attorney's office by 11:00 and be back here at 2 1:30, hopefully you will make your patients tomorrow. 3 MR. SMITH: Can we get an admonition? 4 JUDGE POTTER: Doctor, just to keep things from 5 getting even more complicated, I'm going to ask that neither 6 you nor your attorney have any communications with anybody 7 involved in this case other than to say, "Here are the 8 documents I promised you," or, you know, just give them the 9 documents because we'll be... It will just keep things from 10 getting more complicated. 11 MS. PREWITT: We will certainly abide by that, 12 but we would just ask if somebody would let us know if there's 13 a delay because this is -- that's the only communication 14 there's been, "We're going to start at 10:00" because nobody 15 told us why we weren't in there at 9:00. 16 MR. STOPHER: And Mr. Smith and Mr. Foley 17 suggested that I go do that after I asked if they had done 18 that. 19 MR. FOLEY: No problem. 20 MR. SMITH: As I understand it, there's also 21 been trial testimony that's been provided to Doctor Coleman. 22 JUDGE POTTER: As I understand it, it was a time 23 line. 24 DOCTOR COLEMAN: There has been some trial 25 testimony that has been supplied that I have not reviewed. 66 1 MR. SMITH: I want to see that, too, whether he 2 looked at it or not. 3 MS. ZETTLER: Have you actually been given 4 depositions, Doctor, from witnesses, not the trial testimony 5 but actual depositions from other witnesses? 6 DOCTOR COLEMAN: No. 7 MS. ZETTLER: Okay. 8 JUDGE POTTER: All right. I will see you-all 9 at -- why don't you-all plan to meet here at 1:15. 10 Doctor, be here at 1:30. Okay. 11 MR. SMITH: Let me put something else on the 12 record. 13 (MS. PREWITT AND DOCTOR COLEMAN LEAVE CHAMBERS) 14 MR. SMITH: I want to make the record clear that 15 we're not waiving our objection and that we're doing this 16 under -- 17 JUDGE POTTER: Duress. 18 MR. SMITH: -- duress, protest, and it's all we 19 can do under the situation after we've spent this much time 20 and money on this case. Again, if they didn't have any 21 causation experts it would be different, but they've got three 22 causation experts that they've already identified. 23 JUDGE POTTER: No, Mr. Smith. If they didn't 24 have any causation experts it would be even more important. 25 Okay. Is anybody uncomfortable with my sheriff 67 1 telling the jury that it's 1:30 or do you want me to call them 2 back? We'll call them all in the courtroom and admonish them 3 before we send them out. 4 (THE FOLLOWING PROCEEDINGS OCCURRED 5 IN OPEN COURT) 6 SHERIFF CECIL: The jury is now entering. All 7 rise. All jurors are present. Court is now in session. 8 JUDGE POTTER: Please be seated. Ladies and 9 gentlemen of the jury, the reason I called you in is because I 10 wanted to explain to you that we're going to take a recess 11 till 1:30. And we'll not hear any testimony this morning, but 12 when we come back at 1:30, obviously we won't then take a 13 lunch break. All right. Just -- it's nobody's fault. It's 14 not a problem, just some things don't get scheduled in quite 15 the way you anticipate and, also, sometimes issues come up 16 that have to be dealt with that you hadn't anticipated. 17 So I'm going to give you the same admonition 18 I've given you before. Do not permit anybody to speak to or 19 communicate with you on any topic connected with this case and 20 any attempt to do so should be reported to me. Do not discuss 21 the case among yourselves or form or express opinions about 22 it. We'll stand in recess till 1:30. 23 (RECESS;BENCH DISCUSSION) 24 MR. SMITH: I guess it goes without saying that 25 Doctor Coleman is a hostile, adverse witness, as far as I'm 68 1 concerned. 2 JUDGE POTTER: I've never really -- that has 3 always been like a -- I present the witness as an expert 4 witness. I think what happens is, is Mr. Stopher, if he 5 thinks you're leading will object and I will then make a 6 ruling. Right now I don't have a reason to say that. I 7 suspect at the time if it gets to the point to where that 8 issue would ever come up I would rule in your favor, but I 9 don't know that I can make that ruling. 10 MR. SMITH: Even based on what he said this 11 morning, that he has spent 30 hours on this project with them 12 and expects to be paid by them and he's had meetings with 13 them? 14 JUDGE POTTER: Well, let's wait till Mr. 15 Stopher -- this is your witness, Mr. Stopher. 16 MR. STOPHER: Right, sir. 17 JUDGE POTTER: If he makes an objection, I 18 suspect he's not going to. If I were going to do it now I 19 would do it on the basis that he was an adverse party in this 20 thing and I think that makes him adverse, but I'm going to 21 just take it up as it comes. 22 (BENCH DISCUSSION CONCLUDED) 23 SHERIFF CECIL: The jury is now entering. All 24 jurors are present. Court is now in session. 25 JUDGE POTTER: Please be seated. I guess we 69 1 missed this morning's questions. Did anybody have any trouble 2 following my admonition about not getting information from the 3 newspaper or talking to anybody? Okay. 4 Mr. Smith, do you want to call your next 5 witness? 6 MR. SMITH: Yes, Your Honor. We'd call Doctor 7 Lee Coleman. 8 JUDGE POTTER: Sir, would you step down here and 9 raise your right hand, please. 10 11 LEE COLEMAN, after first being duly sworn, was 12 examined and testified as follows: 13 14 JUDGE POTTER: Would you please have a seat 15 right there, keep your voice up, and would you spell your 16 first and last names and then state your full name for the 17 jury, please. 18 DOCTOR COLEMAN: First name is Lee, L-E-E; last 19 name Coleman, C-O-L-E-M-A-N. 20 JUDGE POTTER: Answer Mr. Smith's questions. 21 22 EXAMINATION ___________ 23 24 BY_MR._SMITH: __ ___ _____ 25 Q. Doctor Coleman, you were Joseph Wesbecker's 70 1 psychiatrist from July 8, 1987 until September 11th, 1989; is 2 that correct? 3 A. Yes, sir. That's correct. 4 Q. Would it be accurate to say that you treated Mr. 5 Joseph Wesbecker on a regular basis during that two-year, 6 two-month period of time? 7 A. Yes, sir. That would be accurate. 8 Q. Did you in connection with the care and 9 treatment of Mr. Joseph Wesbecker make notes? 10 A. Yes, sir. 11 Q. And did you later have those notes typed up? 12 A. Excuse me? 13 Q. Did you later cause those notes to be typed up? 14 A. Yes, sir. 15 MR. SMITH: Is my microphone working? 16 JUDGE POTTER: You're hearing Mr. Smith all 17 right. It's the Doctor. 18 JUDGE POTTER: Will you look out there and make 19 sure his is turned on? 20 SHERIFF CECIL: Sure. Yeah. 21 JUDGE POTTER: And, Doctor, there are two 22 systems in here and the one that counts is the little brown 23 thing, so if you'll just kind of keep that close to you and go 24 ahead and answer Mr. Smith's questions. 25 Mr. Smith. 71 1 Q. The notes that you had typed up, I believe, 2 Doctor Coleman, have been introduced into evidence as 3 Plaintiffs' Exhibit 160. Let me show you a copy of those 4 notes. I think you may have those in front of you. 5 A. Yes, sir. This looks like a typed copy of my 6 chart, the notes that are in my chart; yes, sir. 7 Q. Do you have your chart with you, sir? Please 8 feel free to get those out, and I'm probably going to be 9 primarily referring to the typewritten notes. 10 A. Do you have the materials I gave you this 11 morning, sir? 12 Q. Yes. 13 A. I had a separate copy this morning that I had 14 some handwritten notation on. 15 Q. Yeah. That's what I was looking for. Why don't 16 you look through there. 17 A. No. It was separate from this. 18 MS. ZETTLER: Check in the manila folder. 19 Q. Oh, yes. I think if you'll check in here, 20 Doctor Coleman, you'll find them. Are they there? 21 A. Yes, sir. Yes, sir. I have them. 22 Q. You have in these notes, as I understand it, 23 sir, recorded your observations of Mr. Wesbecker each time he 24 would visit you in your office? 25 A. Well, what I would put in the notes would be 72 1 usually the -- what I felt were the significant facts or 2 things that happened during a particular session. 3 Q. Would it be fair to say that there might have 4 been some things that were discussed concerning collateral 5 matters, but from a psychiatric standpoint, these notes are 6 what you need to refresh your recollection concerning Mr. 7 Wesbecker's mental status during that period of time? 8 A. Yes, sir. There may have been certain little -- 9 some things that were discussed. The note isn't all inclusive 10 of everything that was discussed in the session, so there 11 certainly may have been things discussed that are not 12 specifically in the note. 13 Q. But anything of significance, you caused to be 14 written down in these notes that we have as Exhibit 160; is 15 that correct, sir? 16 A. Well, I try to . I can't say that 100 percent 17 that I would. There may be some possible significant things 18 that I would omit on occasion, but I try to put down in my 19 note the significant things that I feel like are important 20 from that session. 21 Q. And you've had an opportunity to look over these 22 notes on several occasions since this tragedy on September 23 14th, 1989, have you not, Doctor Coleman? 24 A. Yes, sir. That is correct. 25 Q. And you have not seen anything that you recall 73 1 now that should have been put in these notes, have you? 2 A. No, sir. I can't recall at this time anything 3 that I felt should have been in there that wasn't in there. 4 Q. As far as a psychiatric observation of Mr. 5 Wesbecker, we can rely on your notes, can we not? 6 A. Well, and my recollection as well as my notes. 7 I mean, I know that during my previous deposition sometimes as 8 things were looked at they weren't as clear as I would have 9 liked for them to have been, but my recollection and my notes, 10 yes, sir, I think we can rely on that. 11 Q. Obviously your notes were written within a day 12 or so from the time the actual office visit occurred, were 13 they not? 14 A. Either on that day or usually within one or two 15 days; yes, sir. 16 Q. And your recollection, as we humans have a 17 tendency to do sometimes, is not as fresh after what's now 18 been a five-year period of time? 19 A. I would say that's correct; yes, sir. 20 Q. So the point I'm making is, your notes were made 21 at a time when these office visits were fresh in your mind? 22 A. Yes, sir. 23 Q. And those notes would be more likely to contain 24 the accurate recollections and accurate facts concerning what 25 occurred at your office; correct? 74 1 A. Well, I'm not -- could you repeat the question, 2 please, sir? 3 Q. Your notes are probably going to be more 4 reliable than your recollection because you wrote your notes 5 at the time these office visits occurred; correct? 6 A. Well, certainly what's in my notes is correct. 7 You know, if my recollection of something that I said in my 8 notes is different, the note would be more accurate; yes, sir. 9 Q. All right. I see that when you first examined 10 or visited with Mr. Wesbecker in July of 1987, you made the 11 notation "no suicidal or homicidal ideation." Correct? 12 A. Yes, sir. That's correct. That notation is 13 made. 14 Q. Was that an accurate observation as far as 15 you're concerned, Doctor Coleman, concerning whether or not in 16 June of -- July of 1987, Mr. Wesbecker was suicidal or 17 homicidal? 18 A. Yes, sir. I feel that was an accurate 19 representation of him at the time of the initial evaluation; 20 yes, sir. 21 Q. I don't see the word homicidal written in your 22 office notes on any other occasions, Doctor Coleman. Have you 23 seen any other occasion in your notes where you made notations 24 concerning homicide? 25 A. No, sir. To the best of my recollection there's 75 1 not another reference to that. 2 Q. Can we take it then from your notes that had Mr. 3 Wesbecker expressed to you any homicidal or suicidal ideations 4 you would have noted it? 5 A. Yes, sir. I would have noted it. 6 Q. Had at any time Mr. Wesbecker been perceived by 7 you as being a violent or aggressive individual, can we assume 8 you would have made such a notation in your office chart? 9 A. Yes, sir. If at any time I had felt that he had 10 shown any tendency to be violent or aggressive, I felt certain 11 I would have noted that; yes, sir. 12 Q. I don't see any notations in your office chart 13 concerning any threats that Mr. Wesbecker might have made in 14 your notes. 15 A. That's correct, sir. 16 Q. Can I take it by that, sir, that as far as you 17 recollect, Mr. Wesbecker never threatened anybody or anything 18 in your presence? 19 A. That's correct. He never made any direct threat 20 or even anything that could be interpreted as any type of 21 threat. 22 Q. It appears to me except for a couple of 23 occasions when there's office visits missed and then 24 rescheduled, it appears to me that Mr. Wesbecker was a 25 relatively conscientious patient as far as seeing you as a 76 1 psychiatrist. 2 A. Yes, sir. I think there were two occasions that 3 for some reason he had missed but had rescheduled shortly 4 thereafter. 5 Q. He was not a noncompliant patient as you doctors 6 would say, was he? 7 A. No, sir. I would not call him a noncompliant 8 patient. 9 Q. He sought your psychiatric services out, did he 10 not, Doctor Coleman? 11 A. Yes, sir. 12 Q. In other words, you didn't see him in some 13 hospital when he was there because of some psychiatric crisis 14 that you continued to follow him; correct? 15 A. No, sir. He had had a previous psychiatrist 16 prior to me and he was apparently unhappy with his 17 psychiatrist prior to me, so he or his ex-wife was looking for 18 another psychiatrist and made an appointment with me in my 19 office. 20 Q. It appears to me that he may have even gotten 21 your name from The Yellow Pages? 22 A. That was my understanding, that I may have been 23 one of several psychiatrists they had called to try to set up 24 an appointment. It's possible I could see him sooner. I'm 25 not sure. 77 1 Q. What's your recollection of how long it had been 2 since Mr. Wesbecker had seen a psychiatrist prior to you; how 3 much time had elapsed? 4 A. I'm not sure I referenced that in my note. I 5 would say it's probably approximately six weeks prior to the 6 time that he saw me in July. 7 Q. Okay. So there hadn't been a long time that had 8 elapsed over which this man had not been seeking psychiatric 9 help for his mental illness; correct? 10 A. Well, I don't know how long he would have gone 11 with other previous psychiatrists without being seen, but 12 between the one that he was immediately seeing prior to me, I 13 would say there was not a long time; no, sir. 14 Q. After you first saw Mr. Wesbecker you obtained 15 some of his previous medical records, did you not? 16 A. Yes, sir. I had him sign a release of 17 information from his previous treating psychiatrist to get 18 information from them, and I also had him sign a release of 19 information and obtained a discharge summary from Our Lady of 20 Peace Hospital. 21 Q. And did you review those records? 22 A. Yes, sir; I did. 23 Q. And did your review of those records, Doctor 24 Coleman, indicate that Mr. Wesbecker had pretty regularly seen 25 psychiatrists since 1984, maybe even back to 1980? 78 1 A. Well, from my recollection he was under regular 2 psychiatric care. I don't think the records reflected how 3 regular he was being seen, but he certainly was under 4 psychiatric care at least since 1984, to the best of my 5 recollection. 6 Q. I guess the point is Mr. Wesbecker never 7 appeared to you to be a man who disregarded or didn't keep up 8 as far as his mental health was concerned? 9 A. I'm not sure what you mean by "didn't keep up." 10 Q. Well, Joseph Wesbecker, as far as your 11 observations are concerned, apparently was concerned about his 12 mental illness? 13 A. Yes, sir. That would be correct. 14 Q. And sought your help for his mental illness? 15 A. Yes, sir. And he seemed to have sought help 16 prior to me, as well. 17 Q. And sought previous psychiatrists for his mental 18 illness; correct? 19 A. Yes, sir. That's correct. 20 Q. And while he was under your care he was 21 relatively regular in seeing you for his mental health? 22 A. Yes, sir. That's correct. 23 Q. You as a medical doctor know sometimes people 24 don't pay enough attention to themselves as far as their 25 physical health, don't get regular checkups, don't go to the 79 1 dentist enough and things of that nature; correct? 2 A. There are some patients that do that; yes, sir. 3 Q. But Joseph Wesbecker wasn't a patient that falls 4 into that category as far as his mental illness; correct? 5 A. No. I would have to say that overall he was 6 fairly conscientious. He would have occasions of either 7 adjusting medication himself or missing a couple appointments, 8 but that was not routine for him. 9 Q. Joseph Wesbecker at all times seemed concerned 10 about his mental illness; correct? 11 A. Yes, sir. 12 Q. And was compliant in your recommendations 13 concerning his medications most of the time? 14 A. Yes, sir. I felt like he was compliant. 15 Q. Above average in compliance, in fact, wasn't he, 16 Doctor Coleman? 17 A. I would probably agree with that; yes, sir. 18 Q. I don't see in your office notes the notation 19 character deficit. Have you ever used that term in connection 20 with Mr. Wesbecker? 21 A. I'm sorry. You said character deficit? 22 Q. Yes. 23 A. I'm not real clear what that term means. I 24 wouldn't have used that. 25 Q. Up to September 11th, 1989, would you ever 80 1 characterize Joseph Wesbecker as being an individual that had 2 poor character? 3 A. Well, character deficit is not necessarily a 4 psychiatric term. I don't know if I knew enough about the man 5 to determine what his character would be. 6 Q. Well, I don't see any judgment that you wrote 7 down in your office notes concerning the man's character. 8 A. No, sir. 9 Q. Is there? 10 A. Sorry? 11 Q. There is not? 12 A. No, sir. But that's not usual for me to refer 13 to someone's character as far as a psychiatric diagnosis or -- 14 JUDGE POTTER: Mr. Smith, we're going to take 15 a -- just a second and let's see if -- because the microphone 16 system is not working for some reason. It was working 17 yesterday afternoon. 18 (OFF THE RECORD) 19 JUDGE POTTER: I tell you what, ladies and 20 gentlemen, why don't we go ahead and take at least a 21 ten-minute recess; that way, the workmen can come in here and 22 play with it and see if they can get it fixed. We're going to 23 take at least a ten-minute recess. As I've mentioned to 24 you-all before, do not allow anybody to communicate with you 25 about this case or any topic connected with it. Do not 81 1 discuss it among yourselves and do not form or express any 2 opinions. 3 (RECESS; BENCH DISCUSSION) 4 JUDGE POTTER: Mr. Smith, we've had a request 5 from the jury. They say with all your other witnesses you've 6 asked their age and their background and you didn't do it with 7 this one and they miss your bantering about it. 8 MR. SMITH: I thought after keeping them waiting 9 all morning I'd go ahead and get right to it. 10 JUDGE POTTER: You don't have to, but I thought 11 I'd let you know. 12 MR. SMITH: See, I'm seeing the end of my case 13 and I'm running. 14 JUDGE POTTER: Their other request was they 15 can't hear when I say sustained or overruled, and I need to 16 speak up. 17 MR. STOPHER: That must mean they hear 18 everything else. 19 JUDGE POTTER: No, I think they mean when it's 20 out here. One of them said, "If he repeats the same question 21 then I take it the objection is overruled." 22 (BENCH DISCUSSION CONCLUDED) 23 SHERIFF CECIL: The jury is now entering. All 24 rise. All jurors are present. Court is back in session. 25 JUDGE POTTER: Please be seated. 82 1 Doctor, I'll remind you you're still under oath. 2 Mr. Smith. 3 Q. Doctor Coleman, in my haste to get to the 4 matters at hand since we were behind already, I forgot to ask 5 you your age. How old a man are you, Doctor Coleman? 6 A. I'm 47, sir. 7 Q. And you live here in Louisville? 8 A. Yes, sir. That is correct. 9 Q. And how long have you practiced psychiatry here 10 in Louisville, sir? 11 A. I've been in private practice in psychiatry here 12 since 1984. 13 Q. So for ten years? 14 A. Yes, sir. 15 Q. Give the jury the benefit of what -- your 16 educational background, starting with high school up through 17 medical school. 18 A. I graduated from high school in Hopkinsville 19 High School in Hopkinsville, Kentucky. Attended the 20 University of Kentucky, undergraduate. In 1969 entered 21 University of Kentucky Medical School, finished there in 1973. 22 I did an internship in the Navy in Oakland, California, from 23 1973 to 1974. I completed a radiology residency in 1977, also 24 at the Naval Hospital in Oakland, California. I remained in 25 the Navy on the teaching staff of the hospital there till 83 1 1980. I came back to Louisville, got a job as a radiologist 2 in Louisville, Kentucky, and then entered psychiatry residency 3 in 1981. I finished in 1984 and then have been in the 4 practice of psychiatry since then. 5 Q. Did you do your residency in psychiatry at one 6 of the local hospitals, sir? 7 A. Yes, sir. At the University of Louisville. 8 Q. Now, back to Mr. Wesbecker. The diagnosis that 9 we've seen associated with Mr. Wesbecker is bipolar disorder, 10 schizoaffective disorder and major depressive disorder; 11 correct? 12 A. Well, my final diagnosis was schizoaffective 13 disorder. 14 Q. But over the course of his psychiatric history, 15 as you reviewed when you reviewed the medical records, you saw 16 diagnoses of bipolar, schizoaffective and major depressive 17 disorder? 18 A. There were others but those were among them; 19 yes, sir. 20 Q. Those are mental illnesses, is it not -- are 21 they not? 22 A. Yes, sir. That's correct. 23 Q. And the point I was making before the break is 24 because Mr. Wesbecker was suffering from major depression or 25 schizoaffective disorder or bipolar disorder doesn't mean that 84 1 Mr. Wesbecker had a weakness in character or was a bad 2 individual, per se, does it? 3 A. No, sir. 4 Q. All right. You didn't then and don't now make a 5 judgment concerning his underlying character; correct? 6 A. No, sir. 7 Q. Would it be accurate to say that in your 8 treatment of Mr. Wesbecker at all times, at least from your 9 chart and from your deposition testimony, it appears that even 10 though Mr. Wesbecker wasn't at all times outgoing, that you 11 never felt like he was hiding anything from you; correct? 12 A. I never felt that he was hiding anything. He 13 wasn't a very open individual. He wouldn't talk a whole lot 14 about himself, but I never, that I can recall, ever felt like 15 he was hiding something; no, sir. 16 Q. I don't see the term deceitful or deceived in 17 your medical records anywhere. Do you know -- did you ever 18 when you were observing Mr. Wesbecker observe any deceit on 19 his part? 20 A. No, sir. 21 Q. I don't see any record of where you note that he 22 was lying to you. Is that correct? You don't have any record 23 of Mr. Wesbecker lying to you? 24 A. No, sir. I don't have a record of that; no, 25 sir. 85 1 Q. So that the jury will understand, as I 2 understand it, these typewritten notes that we have are sort 3 of the finished product of your note-taking process in your 4 office; is that right? 5 A. No, sir. These were compiled after the incident 6 in 1989, so -- since my handwriting's not the best, so that it 7 would be more easily readable of my chart notes. 8 Q. That's why I called them the finished product. 9 A. Yes, sir. But -- 10 Q. Apparently, as I understand it, when you're 11 seeing a patient and interviewing a patient you'll have a 12 legal pad in front of you; is that right? 13 A. Yes, sir. That's correct. 14 Q. And you'll make notes on a legal pad but 15 abbreviated notes; correct? 16 A. Yes, sir. 17 Q. And then after you see one patient you may on 18 that same piece of paper or on that same legal pad write down 19 another patient's name and make abbreviated notes concerning 20 that other patient; correct? 21 A. Yes, sir. That's correct. 22 Q. Then at the end of the day or whenever you have 23 time next, you sat down and formally handwrote more complete 24 notes concerning your observation of your particular patients? 25 A. Correct. It could be right after the session. 86 1 It could be at the end of the day or possibly the next day. 2 Then I would write down in my chart -- I don't know whether 3 you term it a formal note but more the actual chart note 4 itself; yes, sir. 5 Q. And those would be handwritten by you? 6 A. Yes, sir. That would be correct. 7 Q. But they would be put and kept in a formal chart 8 form in the patient's chart? 9 A. Yes, sir. That's what I have here. 10 Q. Separate from your other patients? 11 A. Yes, sir. 12 Q. Then after this happened, you felt like it would 13 be appropriate to have your handwritten notations typed up 14 verbatim so that they could be easier read by all; is that 15 correct? 16 A. Yes, sir. That's correct. 17 Q. And that's the final product that we have in 18 front of us as Exhibit 160; correct? 19 A. Yes, sir. 20 Q. You have your handwritten notations there as far 21 as your observations of Mr. Wesbecker, but they would be 22 exactly the same as these typewritten notations, just harder 23 to read, sir? 24 A. Yes, sir. As well as I could interpret my own 25 handwriting, as well. 87 1 Q. I'm not sure, but I think the last time before I 2 see the word anger or angry in your office notes is one year 3 prior to this shooting in September of 1988. 4 A. Well, I'll have to look and see. 5 Q. Look at the notation of 9-7-88. 6 A. (Reviews document) Yes, sir. There is -- I do 7 mention that on 9-7-88, focused on anger at work. That's 8 correct. 9 Q. Now, sir, I don't see the word anger appearing 10 in your chart again for the next year until September 11th, 11 1989, after you had put Mr. Wesbecker on Prozac. Do you see 12 any references to the word anger? 13 A. I'll quickly look through. I'll take your word 14 for it but let me quickly look through, as well. And that's 15 consistent with my recollection, that once he was on medical 16 leave, he was off from work, that his anger particularly about 17 work had subsided. 18 Q. Say that again. 19 A. That once he was put on a medical leave from 20 work that his -- at least during the sessions, his focus of 21 anger at work was significantly less after that. 22 Q. And if he ever mentioned the word "work" again, 23 you didn't record it there again until September 11th, 1989, 24 after he was on Prozac? 25 A. Well, there may have been a reference to a 88 1 lawsuit but -- of course, which was in relation to work, but 2 as far as specifically work, I don't recall putting that in 3 there. 4 Q. That May 31st, 1989, talks about -- no, it's not 5 there -- there is some reference to a lawsuit but you don't 6 use the term anger in connection with that, do you? 7 A. On which date, sir? 8 Q. I had said May 31st, '89, but I don't see that 9 now. 10 A. No. There's a reference to some in-law 11 problems, but I don't see anything about the lawsuit on that 12 one. 13 Q. After September 1988, I don't see any references 14 at all to work until September 11th, 1989, after Mr. Wesbecker 15 has been on Prozac, do you? 16 A. Not in these notes; no, sir. 17 Q. And I believe as you said, that his antagonism 18 toward the workplace had subsided after he was put on 19 disability in August of 1988, up until the time he was put on 20 Prozac in September of 1989; is that accurate, sir? 21 A. I would not say completely subsided. It had 22 significantly diminished. That would be correct. 23 Q. You wouldn't consider his work environment as a 24 major stressor psychiatrically based on your observations 25 after he was put on long-term disability; correct, sir? 89 1 A. No, sir. He was not in the work environment at 2 that time, so it would not have been a major stressor. 3 Q. And the next mention of the work environment is 4 the notation of 9-11-89, after he had been on Prozac for 5 almost a month; correct? 6 A. Yes, sir. And that was that particular incident 7 that he related to me. 8 Q. We'll talk about that in detail in a minute, but 9 as far as anger and as far as work, I don't see any notations 10 of those terms from September '88 until September '89, after 11 Mr. Wesbecker had been placed on Prozac. 12 A. That's correct. There's a notation I think in 13 the January of '89, more animated when talking about the 14 lawsuit, but no reference to anger or even work at that time. 15 Q. Did you intend by putting down the word animated 16 that Mr. Wesbecker was angry? 17 A. No. That was not my intention. 18 Q. All right. 19 Q. I don't see the word agitation in connection 20 with Mr. Wesbecker until September 11th, 1989, unless you go 21 back into the first visit where he was talking about -- you 22 were talking about his agitation in connection with his 23 workplace. 24 A. I think that would be correct; yes, sir. 25 Q. I don't see the word hospitalization anywhere in 90 1 your office notes until September 11th, 1989, after Mr. 2 Wesbecker had been on Prozac for about a month. 3 A. Well, not in reference to me hospitalizing, no. 4 I may have mentioned in the initial one that he had been 5 hospitalized, but not as far as me hospitalizing him myself; 6 no, sir. 7 Q. Mr. Wesbecker's mental status up to September 8 11th, 1989, was never such that you felt it was appropriate to 9 suggest that he be hospitalized for his mental illness; 10 correct, sir? 11 A. Yes, sir. That would be correct. 12 Q. I don't see any reference to irritability or 13 anger or agitation in connection with any other medication 14 that Mr. Wesbecker was receiving from you other than Prozac, 15 do you, sir? 16 A. As I recall, I don't think I made any reference 17 to -- as far as any other medications with reference to anger 18 or I think you said agitation or irritability; no, sir. 19 Q. You never casually (sic) or directly related any 20 anger, irritation, nervousness to any other medication except 21 for the Prozac, did you, sir? 22 A. I don't recall making that reference. There may 23 be times I had felt that maybe some nervousness could have 24 been, but as far as any of the anger or agitation or even 25 irritability, I never felt any of that was possibly related to 91 1 any of his medication prior to September of 1989. 2 Q. All right. And you had, sir, prescribed Mr. 3 Wesbecker a number of antidepressants and other psychiatric 4 medications, had you not? 5 A. Yes, sir. That's correct. 6 Q. Different types of medications? 7 A. I don't know if they would be considered 8 different types. Most of them were antidepressants, although 9 they might be different classes of antidepressants. 10 Q. None of those antidepressants that you had 11 prescribed, up until the Prozac, never caused in your 12 observations noted in these notes any anger or agitation, did 13 they? 14 A. Not to my knowledge; no, sir. 15 Q. The antidepressant therapy that Mr. Wesbecker 16 was receiving up until September 1989, other than the June 17 1988 occasion where he had a short course of Prozac, was all 18 sedative-type antidepressant therapy, was it not? 19 A. Well, I wouldn't classify it that. I mean, some 20 people can be sensitive to the sedating aspects of those 21 medications, but some people cannot, as well. 22 Q. Those tricyclic antidepressants, if they have 23 side effects of sedating versus activating properties, are 24 overwhelmingly more likely going to be sedating side effects, 25 aren't they, Doctor Coleman? 92 1 A. Well, it depends on the medication and it 2 depends on the individual. Now, I think he was on imipramine 3 at one time, which does not tend to be overly sedating in a 4 lot of people, but by and large the tricyclics tend to have 5 sedation much more common as a side effect. 6 Q. And Mr. Wesbecker had not had any experience 7 with agitation or anger in connection with the tricyclic 8 antidepressants you had given him; correct? 9 A. Not in my opinion; no, sir. 10 Q. Or you would have noted it, wouldn't you, 11 Doctor? 12 A. If I felt that that had been a component of the 13 medication, I feel like I would have noted it; yes, sir. 14 Q. It appears to me from looking at your chart, 15 Doctor Coleman, that you are relatively meticulous in 16 observing the effects of the medication on Mr. Wesbecker; 17 would that be correct? 18 A. Well, I've never used that term for myself 19 before, but I feel like I would try to document exactly what 20 the problems were with a particular medication; yes, sir. 21 Q. It seems to me that you have testified that Mr. 22 Wesbecker was not going to be the type of patient that would 23 be receptive to psychotherapy; is that right? 24 A. That's correct. 25 Q. And that you felt the best way to control his 93 1 mental illness was by psychopharmacology; correct? 2 A. That was my primary focus of treatment. 3 Q. And since it was your primary focus of 4 treatment, wouldn't it be accurate to say that you were being 5 careful to note the effects of the medication on Mr. 6 Wesbecker? 7 A. I would say in substance that's pretty correct; 8 yes, sir. 9 Q. Do you have any notations concerning the effects 10 of the medication that you did not feel were accurate at the 11 time you made those notations, Doctor Coleman? 12 A. You mean are there other notations other than 13 what's in my records? 14 Q. Do you recall in looking at these notations 15 concerning the effects of these medications, were there any 16 that you did not feel at the time were accurate? 17 A. No, sir. I felt like what I put in my records 18 was accurate. 19 Q. You were using your best judgment as a 20 psychiatrist to record the effects of those medications at the 21 time you made those recordings, were you not, sir? 22 A. Yes, sir. I felt like I was. 23 Q. Would it be accurate to state that Mr. Wesbecker 24 was relatively stable in his psychiatric condition during the 25 time he was receiving tricyclic antidepressant therapy? 94 1 A. Depends on how you would define stable. 2 Q. Well, he had not needed hospitalization, had he, 3 sir? 4 A. No, sir. He had not needed hospitalization. 5 Q. He had not needed to have his office 6 appointments stepped up at all, had he, sir? 7 A. Well, I think there were times we might have met 8 once a month rather than go three months, which was on some 9 occasions. I don't recall there was ever a time I wanted to 10 see him sooner than three or four weeks. 11 Q. But he never called you in trouble, did he? 12 A. Well, I think there were times he would call me 13 with some specific side effects that he felt that a particular 14 medication had caused him. 15 Q. But those were easily remedied, were they not? 16 A. Well, they were not easily remedied. That's why 17 a lot of times we would have to change medication. 18 Q. But they were something that was able to be 19 remedied, weren't they? 20 A. I felt like there was something we could do to 21 alleviate them, either adjust the dose of the medication or 22 change the medication. 23 Q. You never felt it necessary to hospitalize Mr. 24 Wesbecker to stabilize his medical mental condition until 25 September 11th, 1989, did you? 95 1 A. No, sir. 2 Q. So from that standpoint he was able in your 3 psychiatric opinion to function on an outpatient basis? 4 A. Yes, sir. That's correct. 5 Q. And during this two-year period of time there 6 was work for a period of time; correct? 7 A. Yes, sir. Worked up to I think August of 1988. 8 Q. He appeared to be able to get to your office 9 adequately? 10 A. To the best of my knowledge; yes, sir. 11 Q. On those occasions in which he would appear at 12 your office, he appeared relatively regularly, did he not? 13 A. Yes, sir. He would come in regularly. He would 14 usually make his appointments. 15 Q. And he would be neat in his appearance, also, 16 wouldn't he? 17 A. Yes. He would always be neat in appearance. 18 Q. He never appeared to you to be a sociopath as 19 noted in any of your notations? 20 A. Well, I mean, if you're referring to what we 21 consider an antisocial personality disorder; no, sir, I would 22 not use sociopath or an antisocial personality disorder, as 23 well, either. 24 Q. You were never concerned that Mr. Wesbecker was 25 going to go out and do harm to someone by virtue of his mental 96 1 illness, were you? 2 A. No, sir. I never at any point felt that there 3 was any danger to anybody else. 4 Q. And as you say, that antagonism that he had 5 expressed on a number of occasions in 1987 concerning his work 6 environment subsided once he was put on long-term disability? 7 A. Yes, sir. At least in the sessions his anger at 8 work had seemed to subside significantly after that. 9 Q. It didn't raise again until -- significantly 10 until the September 11th, 1989 notation; correct? 11 A. Well, I would say probably between September of 12 1988 and September of 1989 certainly there was no strong focus 13 on any particular work problem other than that last visit. 14 Q. And there certainly was on the last visit, 15 wasn't there, Doctor Coleman? 16 A. Well, there was particular focus on this one 17 incident; yes, sir. 18 Q. All right. If you'll turn with me to the 19 August 10, 1989 office notes, it indicates that "The patient 20 relates change of meds, no specific benefit. Still has 21 morning lethargy, trouble initiating sleep and trouble with 22 memory. Talked about whether to accept present level or try 23 something different. Talked about possibility of benefits of 24 Prozac and patient agreeable to trial of this. Most risk-free 25 method seems to be to start this and then gradually taper 97 1 Trazodone. Plan: Start Prozac 20 milligrams per day, Lee A. 2 Coleman, M.D." Correct, sir? 3 A. Yes, sir. That's correct. 4 Q. It appears to me that on August 10, 1989, Mr. 5 Wesbecker was having difficulty primarily of a depressive 6 nature, would that be correct, sir? 7 A. I felt like at that time he still certainly had 8 trouble with depression. He was not depression free at that 9 time. 10 Q. The symptoms that you mentioned, morning 11 lethargy, trouble initiating sleep and trouble with memory 12 appear to be all signs and symptoms of major depressive 13 disorder; is that correct, Doctor Coleman? 14 A. Well, they could be but I also felt like they 15 could possibly be side effects of the medication he was taking 16 at that time, as well. 17 Q. The medication that he was on at that time was 18 Trazodone? 19 A. At that time he was taking Lithobid, which is a 20 preparation of lithium, Trazodone, and I think he was taking 21 Restoril for sleep. 22 Q. All right. You mention nothing about Restoril 23 for sleep in your office note of 8-10-89, do you, sir? 24 A. There's not an office note, but I think I did 25 write him a prescription for Restoril at that time. He had 98 1 been on it prior to that. 2 Q. Mr. Wesbecker had for some time been receiving 3 hypnotics for sleep, had he not? 4 A. Yes, sir. 5 Q. Did Restoril -- the Restoril was not prescribed 6 by you to Mr. Wesbecker as an anti-anxiety medication, was it? 7 A. That was not its intent; no, sir. 8 Q. It was for sleep? 9 A. It was intended for sleep; yes, sir. 10 Q. And had been given to him on a p.r.n. basis, 11 which is as needed, for some time, had it not? 12 A. It was on p.r.n. but it looks like, looking at 13 the records, he probably took it fairly regularly. 14 Q. I understand. Is it accurate to say, Doctor 15 Coleman, that under -- that most individuals who take these 16 short-acting mild hypnotics, sleeping pills, get a little 17 desensitized to them after a while? 18 A. That can happen; yes, sir. 19 Q. Do you have -- 20 A. Not in all cases, but it certainly can. 21 Q. But certainly the Restoril that you prescribed 22 for Mr. Wesbecker you did not prescribe it for anxiety, did 23 you? 24 A. No, sir. 25 Q. It was not intended to be a tranquilizer that he 99 1 took on a daily -- during the day -- basis was it, sir? 2 A. No, sir. That was not his intent. 3 Q. It was the intent to make him sleep; correct? 4 A. That's correct. Its intent was to help him 5 sleep. 6 Q. And the intent in prescribing Restoril was that 7 it has a relatively short half-life and it has the effect of 8 putting people to sleep and then when they wake up the next 9 morning they don't have grogginess or a hangover-type effect; 10 correct? 11 A. That's the reason I use Restoril; that's 12 correct. 13 Q. And that's the reason you used it in Joseph 14 Wesbecker; is it not? 15 A. I can't remember exactly specifically that 16 that's why I chose it. Actually the medication he was on 17 prior to the Restoril has even a shorter half-life, but 18 that's -- I mean, generally Restoril is the most common sleep 19 medication I prescribe because of that profile. 20 Q. That it is out of the system in a quick, 21 relatively speaking, period of time? 22 A. Correct. It usually doesn't have any 23 accumulation effect. It doesn't have any hangover effect in 24 the morning. 25 Q. Doctor Coleman, we have your last two notations 100 1 concerning Mr. Wesbecker and, of course, you have his notes in 2 front of you, the jury has his notes in front of you. I'd 3 like to go through it. Your September 11th, 1989 notation is 4 "Patient seems to have deteriorated." Correct? 5 A. Yes, sir. 6 Q. You never used that term in connection with Mr. 7 Wesbecker before September 11th, 1989; correct? 8 A. That's correct. 9 Q. You note "tangential thoughts." Correct? 10 A. Yes, sir. 11 Q. As I recall, you noted tangential thoughts only 12 on one other occasion in connection with Mr. Wesbecker. 13 A. Well, I don't recall using them even on any 14 other occasions. As I recall, that was the only time that I 15 used that. 16 Q. All right. This is something new, the 17 tangential thought? 18 A. Yes, sir. 19 Q. You note "weeping in session." Is this the 20 first time Mr. Wesbecker had ever cried in front of you? 21 A. Yes, sir. That's correct. 22 Q. You note "increased level of agitation and 23 anger." Correct? 24 A. That's correct. 25 Q. Again, you had not made a notation like that in 101 1 over a year, had you, sir? 2 A. No, sir. 3 Q. "Question and then question mark, from Prozac." 4 Correct? 5 A. That's correct. 6 Q. "Patient states he now remembers sexual abuse by 7 co-workers and has called sex crimes division of police." 8 Correct, sir? 9 A. Yes, sir. 10 Q. This is new, also, isn't it, Doctor Coleman? 11 A. Yes, sir. Never heard anything about that 12 before. 13 Q. Tell the jury what this instance of sexual abuse 14 as related by Mr. Wesbecker was. 15 A. Well, he had told me that he had felt like the 16 Prozac had helped him remember -- now I'll kind of paraphrase 17 what he said -- that he had been forced to give oral sex to 18 one of his foremen with other co-workers watching so he could 19 get off this machine apparently called the folder that he did 20 not like working, and that the Prozac helped him remember 21 that. At that point, that's when he wept in the session for a 22 brief period of time. 23 Q. Now, you knew then and we know now that Joseph 24 Wesbecker hadn't worked in over a year; correct? 25 A. Yes, sir. That's correct. 102 1 Q. Was Mr. Wesbecker relating this as something 2 that had recently occurred or that he had just recently 3 remembered this instance? 4 A. Well, I felt at the time that it was something 5 that had occurred when he was working, so it had not recently 6 occurred but that it had occurred when he was still working at 7 Standard Gravure. 8 Q. That he thought it had occurred when he was 9 still working? 10 A. Well, in his mind it had happened when he was 11 working, and that was my -- I mean, he did not specifically 12 say this happened at Standard Gravure, but my sense was that's 13 exactly what he was talking about because he was talking about 14 getting off the folder and that's where that machine was. 15 Q. And you knew he hadn't been on the folder in a 16 number of years, didn't you? 17 A. Well, I know he hadn't been on it in a year 18 because he hadn't worked in a year. 19 Q. Did you believe that this incident occurred? 20 A. Well, I really wasn't sure, you know, at that 21 time one way or the other. I would say it would be about 22 50/50 and if you had to pin me down it certainly sounded 23 believable, I would probably lean just a little bit in that 24 direction. But, you know, particularly with the other things 25 that he was displaying, I really had a concern about what that 103 1 might be, but I wasn't sure. 2 Q. Did you actually believe that it was the Prozac 3 that caused him to remember this? 4 A. Well, I didn't put much merit in that Prozac 5 would help him remember some type of repressed memory. 6 Q. At that time you weren't aware of Prozac being a 7 memory pill, were you? 8 A. No, sir. 9 Q. Did you know at that time that Prozac had caused 10 delusions or hallucinations in some patients? 11 A. I think I was aware that Prozac, as any other 12 antidepressant, in some people can cause delusions or 13 hallucinations. 14 Q. Well, you didn't think that Prozac was what 15 caused him to actually remember it? You didn't think it 16 improved his memory, did you, Doctor Coleman? 17 A. I'm sorry? 18 Q. You didn't think Prozac had improved Mr. 19 Wesbecker's memory? 20 A. No, sir; I did not. 21 Q. You go on to say, "Because of deterioration, I 22 encouraged patient to go into the hospital for stabilization, 23 but he refused." Correct? 24 A. Yes, sir. That's correct. 25 Q. You never recommended that Mr. Wesbecker go to 104 1 the hospital before this, had you? 2 A. No, sir. 3 Q. Your plan was to discontinue the Prozac which 4 may be cause; correct? 5 A. Yes, sir. That's correct. 6 Q. Then you say, "Return to clinic two weeks." 7 Correct? 8 A. Yes, sir. That's what's in my record. That's 9 correct. 10 Q. That was the shortest time that you had ever 11 asked Mr. Wesbecker to return, wasn't it? 12 A. Correct. And actually I had asked him to come 13 back in one week, but I wanted his ex-wife to come in with him 14 and, for some reason, she couldn't come. But certainly even 15 two weeks would have been the shortest period of time I would 16 have ever seen him back. 17 Q. You had never seen him in two weeks, much less a 18 week; is that right? 19 A. No, sir. Not to my recollection, no. 20 Q. Now, Doctor Coleman, in going through your 21 depositions that you've given in describing that day, Mr. 22 Wesbecker that day on September 11th, 1989, I see a number of 23 things. You say, "I could tell fairly quickly that he, after 24 he came into the office that something was changed. His 25 affect or mood was quite up and down as opposed to his usual 105 1 fairly level of control." 2 MR. STOPHER: Your Honor, may we have a page and 3 volume citation of that? 4 MR. SMITH: It's the Hatfield deposition, Page 5 74, Line 16. 6 I'll begin again, Doctor Coleman. See if this 7 is accurate with respect to this visit on September -- of Mr. 8 Wesbecker on September 11th, 1989. "I could tell fairly 9 quickly he -- after he came in the office that something was 10 changed. His affect or mood was quite up and down as opposed 11 to his usual fairly level of control. He was a bit more 12 animated with his gestures. I would not say he was dazed in 13 appearance. As I mentioned, there was one point he weeped in 14 the session when he talked about the sexual abuse, which was 15 unlike him. So it was pretty evident it was not his usual 16 office visit." Correct, sir? 17 A. Yes, sir. That's correct. 18 Q. And when you were asked about the effect of the 19 Prozac in this visit -- in the Fentress deposition at Page 37, 20 Line 9, Counsel, taken on September 9th, 1993. "In connection 21 with Prozac, you say he was pacing for one thing. His 22 gestures were more animated and he had more movements, as I 23 recall." Is that accurate, sir? 24 A. I don't recall making that comment in reference 25 to Prozac. You'll have to cite me the... 106 1 Q. Let's just back up, then, and start on Page 36, 2 Line 6 -- Line 10: "What signs did you point out to Mr. 3 Wesbecker that you felt showed that his condition was 4 deteriorating?" 5 A. Correct. 6 Q. Well, let's back up. Again, you had said 7 earlier in that -- in the answer he didn't say anything. "I 8 pointed out to him what I thought were signs of his 9 deterioration and why I wanted to stop the Prozac." Correct? 10 A. That's correct. 11 Q. And then you were asked what signs did you point 12 out to Mr. Wesbecker that you felt showed that his condition 13 was deteriorating. Your answer was, "I don't know my exact 14 words. I can only summarize what I -- the context of what 15 happened was he seemed to be more anxious. He certainly was 16 not sleeping well, that he, you know, agreed that his emotions 17 seemed to be up and down a lot. Those were the main things. 18 And I told him that I, you know, wanted to take him off the 19 Prozac because I wondered if that might be part of his 20 condition. I think that's when he said, well, I think it 21 helped me." 22 Then you were asked, did you have this 23 conversation before he told you about the sexual abuse. You 24 say, "I think, as I recall, that's what led into the sexual 25 abuse. When I asked him how has the medication helped you, as 107 1 I recall, he generally went on to say, well, it's helped me 2 remember this, and I can't recall his exact words but the 3 incidence of -- but this incident at work." 4 Then you were asked, "Explain to me how it 5 manifested into his anxiousness on that day." Your answer 6 was, "Well, he was pacing for one thing. His gestures were 7 more animated and he had more arm movements, as I recall. 8 Those would be the main things that I recall at this time." 9 Correct, sir? 10 A. Yes, sir. 11 Q. When you say he was pacing for one thing, his 12 gestures were more animated, he had more arm movements as the 13 main things you observed, you were relating those at that time 14 to the Prozac, were you not, Doctor Coleman? 15 A. Well, at that time my question was whether the 16 Prozac was the cause of his deterioration, and certainly those 17 were things that I was -- 18 Q. Observing? 19 A. Had observed that were different that I wondered 20 whether could be attributed to the Prozac, but I wasn't sure. 21 Q. You say he was expressing a number of emotions 22 within the same session, anger, crying and no happiness, and 23 for a normal person you would not call it calm; correct? 24 A. That's correct; yes, sir. 25 Q. You said, "I knew he was nervous when he first 108 1 came in, but as I recall, I initiated the session with how he 2 felt like the Prozac had been." Correct? 3 A. I recall making that statement; yes, sir. 4 Q. You recognized his nervousness immediately when 5 he walked in, didn't you, Doctor Coleman? 6 A. Yes, sir. To my recollection. 7 Q. You didn't have to ask him a single question 8 before you recognized this nervousness; correct, sir? 9 A. That would be correct. 10 Q. The one written notation on your yellow legal 11 pad that you kept there in front of you that day was 12 "nervous"; correct, sir? 13 A. That's correct, sir. 14 Q. You characterized this as a substantial change 15 in his condition, did you not? 16 A. Well, I think, as I've said before, I 17 characterized it as a significant deterioration. 18 MR. SMITH: Well, let's get it right. Page 70, 19 Hatfield, beginning Line 14. May I approach, Your Honor? 20 JUDGE POTTER: Uh-huh. 21 Q. You were asked the question, "Now, this was in a 22 period of about a month and he had been on Prozac then since 23 August 10, 1989, and during that month he went from a fairly 24 stable condition except for lethargy and sleep and memory 25 problems to one of deterioration, weeping, remembered this sex 109 1 incident. So there was a -- appears to me to be a substantial 2 change in his condition in that month. Would that be 3 correct?" 4 And what's your answer, Doctor Coleman? 5 A. "Correct. There was a substantial change." 6 Q. And it was a substantial deterioration, also, 7 wasn't it, sir? 8 A. Well, it's hard for me to, you know, estimate 9 substantial. The attorneys use terms like substantial and 10 great and, you know, it was a -- certainly a significant 11 deterioration that was easily detectable. 12 Q. It was substantial enough that you recommended 13 that Mr. Wesbecker be hospitalized to stabilize that 14 condition, wasn't it? 15 A. That's correct. 16 Q. You say with respect to the tangential thoughts 17 that are observed there that what that means is that you would 18 ask him a question and he would answer another question or 19 answer something that wasn't a response to the question you 20 had asked, would that be accurate? 21 A. Right. It would be a question and rather than 22 directly answering the question, he would go off on a tangent 23 about something seemingly fairly different. 24 Q. So he wasn't responding to you in a manner that 25 you would have expected? 110 1 A. Not that was usual for him, no. 2 Q. Yes. That was going to be my next question. Up 3 to that point, he had responded to you in a manner that you 4 had expected; correct, sir? 5 A. Well, in regards to specifically on the occasion 6 of the tangential thoughts he had never had that before. 7 Q. You, Doctor Coleman, were concerned that what 8 you were seeing in Mr. Wesbecker was a reaction to the Prozac, 9 weren't you? 10 A. That was my concern at that time, that it's 11 possible that his condition could have been a reaction to the 12 Prozac; yes, sir. 13 Q. You thought that Prozac might be the cause of 14 his condition; correct, sir? 15 A. Yes, sir. That's correct. 16 Q. You say also that you pointed out to him what 17 you thought were the signs of deterioration and why you wanted 18 him to stop the Prozac, and you told him that you wanted to 19 take him off the Prozac because you wondered if that might be 20 part of his condition; correct, sir? 21 A. If that might be part or be causing the 22 deterioration that I had seen; yes, sir. 23 Q. You say he deteriorated from the present level 24 of function. You testified this was a significant 25 deterioration, did you not, Doctor Coleman? 111 1 A. Yes, sir. That's correct. 2 Q. It was an increased level of anger, he was more 3 animated and his emotions were more labile; correct, sir? 4 A. That's correct. 5 Q. What does labile mean? 6 A. Labile is a term we use for particularly 7 emotions that come and go very quickly. They can be one mood, 8 like he wept at one point, and then within fifteen seconds 9 seemed to kind of recuperate. So labile means to come and go 10 very quickly. 11 Q. You say he was more nervous, more anxious than 12 he had been? 13 A. Yes, sir. That's correct. 14 Q. In fact, he was the most nervous, most anxious 15 and most angry that you had ever seen him, wasn't he, Doctor 16 Coleman? 17 A. Well, you have three things there. I'm not sure 18 I would say he was the most angry. Certainly I would say it's 19 a fair statement to say he was probably the most nervous and 20 anxious than I had ever previously seen him. 21 Q. And you wondered whether the Prozac might be the 22 cause of that; correct? 23 A. Correct. At that time I wondered whether the 24 Prozac might be the cause of that. 25 Q. And at the time you wrote "Discontinue Prozac, 112 1 which may be cause." Correct, sir? 2 A. Yes, sir. That's correct. 3 Q. In fact, what you said was in your deposition, 4 "My sense was, my guess was at the time -- what I felt more 5 strongly about was that this was Prozac and that probably 6 after being off of it for a few days he's going to feel 7 better." Is that correct, Doctor Coleman? Even though you 8 didn't prescribe Mr. Wesbecker -- even though you had never 9 seen the anxiety and nervousness and the deterioration that's 10 described at all in Mr. Wesbecker, you didn't prescribe him a 11 tranquilizer at the time, did you? 12 A. No, sir; I did not. 13 Q. Because you felt at that time like what you were 14 seeing was the Prozac, didn't you? 15 A. At the time I felt like that -- my concern was 16 that his deterioration certainly may have been caused by the 17 Prozac; that is correct. 18 Q. And you felt like you wouldn't need to prescribe 19 a tranquilizer because if you would discontinue the Prozac 20 that these symptoms would probably abate and he'd be better in 21 a few days; correct, sir? 22 A. Well, that's one reason, plus, since I wasn't 23 sure what was going on, I didn't want to add another 24 medication on top of it when I didn't know what was going on. 25 Q. You felt like if they discontinued the Prozac, 113 1 he would be better in a few days, didn't you? 2 A. At that time that was certainly my sense; yes, 3 sir. 4 Q. You knew also that Prozac had an abnormally or 5 unusually long half-life, did you not? 6 A. Yes, sir. I knew that it had a long half-life; 7 that is correct. 8 Q. And that the Prozac would continue to affect Mr. 9 Wesbecker for some period of time even if he did discontinue 10 it on September the 11th, 1989? 11 A. That's correct. 12 Q. In fact, you know that Mr. Wesbecker had 13 therapeutic blood levels of Prozac in his blood at autopsy on 14 September 14th, 1989, don't you? 15 A. Yes, sir. 16 Q. On Page 179 of the Fentress deposition of 17 September 9th, 1993, were you asked the question, Doctor 18 Coleman, "The last time you testified that you had certain 19 expectations as to how Prozac would act upon a patient and 20 what the possible side effects of Prozac were, would you tell 21 us what your expectations were as to how Prozac would act on a 22 patient back in 1989 when you prescribed it to Mr. Wesbecker?" 23 Your answer at that time was, "Well, my experience, I guess." 24 MR. STOPHER: No. My expectation. 25 Q. "My expectation, I guess, as well as hope that 114 1 it would alleviate a certain degree of depression. Tend to 2 have minimal side effects in most people. That would be my 3 expectations of its benefits." Was that correct then, sir? 4 A. Yes, sir. 5 Q. Was that your hope for Joseph Wesbecker then, 6 sir? 7 A. Yes, sir. That was my hope. 8 Q. That it would have minimal side effects? 9 A. That it would improve his depression and have 10 minimal side effects; that is correct. 11 Q. You thought when you made the notation of 12 September 11th, 1989, before this tragedy occurred on 13 September 14th -- well, let me strike that. 14 You wrote what we see there in black and white 15 before September 14th, 1989, did you not? 16 A. Yes, sir. That's correct. 17 Q. When you made the notation of September 11th, 18 1989, you were recording Mr. Wesbecker's condition in as 19 accurate a way as you could then, sir, weren't you? 20 Q. Yes, sir. 21 Q. Nobody knew that this was going to happen on 22 September 11th, 1989, did they? 23 A. Certainly I didn't. 24 Q. Nobody knew that, did they? 25 A. I can't answer that. I don't know that. 115 1 Q. You were trying to be as accurate and truthful 2 and descriptive as possible when you wrote that note on 3 September 11th, 1989, weren't you? 4 A. Yes, sir. Certainly trying to be as accurate as 5 possible. 6 Q. You at that time felt like that Prozac was the 7 cause of Mr. Wesbecker's deterioration, didn't you? 8 A. I wasn't for certain, but that was my feeling at 9 the time; that is correct. 10 Q. It was most probably in your judgment at that 11 time the cause of his deterioration, wasn't it, sir? 12 A. I'm sorry. Could you repeat that? 13 Q. It was most probably at that time in your 14 judgment the most probable cause of his deterioration? 15 A. Yes, sir. At that time that was my feeling. 16 Q. Before last Monday night, you and I had never 17 talked, had we, Doctor Coleman? 18 A. No, sir. 19 Q. Before last Monday night you and I had never 20 met, had we, sir? 21 A. No, sir. 22 Q. Over the last five years since this tragedy 23 occurred, employees of Eli Lilly and Company had been in your 24 office on a monthly basis, had they not? 25 A. Well, I don't know exactly how often they come 116 1 in and, of course, they came in before this happened, but what 2 we call the detail people do make regular visits every one to 3 two months. 4 Q. During that five-year period of time, from the 5 time you wrote this note up until the time this trial began, 6 none of those employees of Eli Lilly that had been to your 7 office on detail missions to sell or explain Lilly medications 8 had ever asked you anything substantive about this lawsuit, 9 had they, Doctor Coleman? 10 A. Not anything substantive; no, sir. 11 Q. But after this trial began, two or three days 12 after this trial began, you met with Mr. Stopher and/or Mr. 13 Freeman, lawyers for Eli Lilly and Company, didn't you? 14 A. That was probably two or three days before the 15 trial began, as I recall. 16 Q. And you had a discussion with them, didn't you? 17 A. I had met with them. They had requested my 18 attorney if I would meet with them; that is correct. 19 Q. You met with them early, mid September? Had we 20 picked this jury when you first met with them? 21 A. I don't know exactly when the jury was picked. 22 This was probably around the 20th to 22nd of September. 23 Q. Okay. It would have been the week before we 24 picked the jury? 25 A. As I recall, I think the trial was supposed to 117 1 start like the 29th of September or something like that, 26th, 2 which I guess would have even been prior to the picking of the 3 jury. I think it was before that; yes, sir. 4 Q. And they talked to you specifically, Mr. 5 Stopher, about this lawsuit, didn't they? 6 A. That was -- Mr. Stopher wanted me to review some 7 materials that he wanted to give me to review for the lawsuit; 8 yes, sir. 9 Q. And you agreed? 10 A. Pardon? 11 Q. And you agreed to look at those materials? 12 A. I agreed to review them; yes, sir. 13 Q. And you started keeping your time in connection 14 with that, didn't you, Doctor Coleman? 15 A. I started keeping my time in the hopes that they 16 might compensate me for my time; as if I had reviewed 17 materials that you might have given me, I would hope you would 18 compensate me for my time, as well. 19 Q. But I didn't approach you and give you any 20 materials, did I, Doctor Coleman? 21 A. You certainly approached me for a meeting. 22 Q. I didn't approach you and give you any material 23 to look at, did I, Doctor Coleman? 24 A. Sir, you made the approach to set up the 25 meeting. 118 1 Q. Did I give you any material to review, Doctor 2 Coleman? 3 A. No, sir; you did not. 4 Q. Did I at any time suggest to you what opinion I 5 wanted from you? 6 A. No, sir. Neither did Mr. Stopher. 7 Q. You didn't tell me when I met with you Monday 8 that you had met with Mr. Stopher, did you? 9 A. Sir, you didn't ask me. 10 Q. And you didn't tell me, did you? 11 A. No, sir. 12 Q. Did you know that your attorney had given Mr. 13 Foley and myself one hour to meet with you? 14 A. I wasn't aware of how much time he had given 15 you, sir. 16 Q. We met with you briefly, didn't we? 17 A. About the same time that the initial meeting I 18 met with Mr. Stopher. That would be about correct. 19 Q. But we didn't give you any materials, did we? 20 A. No, sir. But my attorney made the offer. 21 Q. But that wasn't the only time you talked with 22 Mr. Stopher, was it? 23 A. No, sir. 24 Q. I believe you told us this morning -- you didn't 25 tell me about meeting with Mr. Stopher the first time, did 119 1 you, when I met with you Monday night? 2 A. I didn't tell you about either time, sir. 3 Q. And you didn't tell me about meeting with Mr. 4 Stopher or Mr. Freeman, either, the second time Monday night, 5 did you? 6 A. No, sir. 7 Q. Didn't tell me about these meetings with Mr. 8 Stopher and Mr. Freeman until Judge Potter put you under oath, 9 this morning, did you? 10 MR. STOPHER: Objection, Your Honor. 11 JUDGE POTTER: Sustained. 12 Q. When was the second meeting you had with Mr. 13 Stopher and Mr. Freeman? 14 A. I can't recall exactly. It would probably be 15 the first week or two of October. 16 Q. While we were here in trial? 17 A. Yes, sir. 18 Q. While testimony was being taken? 19 A. To the best of my knowledge, that's correct, 20 sir. 21 Q. Did they meet with you early in the morning or 22 late at night? 23 A. I think it would be around six o'clock in the 24 evening on that second time, actually, probably both times. 25 Q. They gave you this material and asked you to 120 1 review it to come to some kind of opinion, didn't they? 2 A. Yes, sir. On the second meeting I had requested 3 additional materials. 4 Q. But they asked you to review it to come to an 5 opinion; correct, sir? 6 A. That's correct. 7 Q. You also went to MedLine, which is a computer 8 medical research group or outfit that you can just punch in 9 from your home, didn't you? 10 A. Yes, sir. I can access that through my home 11 computer. 12 Q. And you did some research for them, didn't you? 13 A. Not for them, sir, that was for myself. They 14 did not request to do that. 15 Q. You intend to charge them for that time, don't 16 you? 17 A. That was time that I was spending and certainly 18 hope that they would compensate me for that. 19 Q. You have spent 20 or 30 hours looking into this 20 matter for them, haven't you, sir? 21 A. At least, if not more. 22 Q. And you intend and want to be compensated at a 23 rate of $200 an hour, don't you, sir? 24 A. I would hope to be, sir. 25 Q. Which if it's 20 to 40 hours -- 20 to 30 hours 121 1 would be four or five thousand dollars that either Mr. Stopher 2 or Mr. Freeman or Eli Lilly is going to pay you; correct? 3 A. They've not -- there's no formal agreement to do 4 that. I'm only hoping that that would happen as I would 5 expect anybody to hopefully compensate me for my time, not for 6 my opinion. 7 Q. Did they tell you that they have already hired 8 three experts in this case, Doctor Coleman? 9 A. I think they had mentioned that they had 10 experts. I had no idea how many. 11 Q. Did they tell you what their experts were going 12 to opine in this case? 13 A. No, sir; they did not. 14 Q. Did they tell you they were dissatisfied with 15 the three experts they had already hired in this case? 16 A. No, sir. They didn't use those words. 17 Q. Did they give you any explanation as to why they 18 would ask you to do this work for them? 19 A. Yes, sir; they did. 20 Q. Before this, the Lilly detail people who had 21 been seeing you regularly for five years had never asked you 22 to do this, had they? 23 A. No, sir; although they had been seeing me longer 24 than five years, but, no, they had never asked me to do this. 25 Q. You were only asked to do this after this 122 1 litigation actually went to trial; correct? 2 A. As I said, my first meeting with Mr. Stopher was 3 prior to going to trial. 4 Q. But just a few days prior to trial? 5 A. Yes, sir. That's my recollection. 6 Q. Do you know if your lawyer ever called Mr. Foley 7 or Ms. Zettler or anybody representing these people here and 8 advised them that you were doing this for Mr. Stopher or Mr. 9 Freeman or Eli Lilly and Company? 10 A. Not to my knowledge; no, sir. 11 Q. Is this your lawyer right here? 12 A. She's one of them. 13 Q. Why didn't you tell Mr. Foley and myself when we 14 were sitting in front of you face to face that you had been 15 doing this work for Mr. Stopher or Mr. Freeman or Eli Lilly 16 and Company? 17 A. Certainly I would have been glad to tell you if 18 you had asked. 19 Q. Why didn't you volunteer it? We never dreamed 20 that you were doing this. 21 A. Is that a question, sir? 22 Q. Yeah. 23 A. Why did I not tell you? 24 Q. Why didn't you volunteer it? 25 A. Well, I guess one reason was my attorney advised 123 1 me to -- 2 MS. PREWITT: Your Honor, I object to any 3 attorney-client privilege. 4 JUDGE POTTER: I'm sorry, ma'am. 5 A. Had said unless, you know, certainly 6 specifically asked, to not volunteer it on my own, but 7 certainly don't hesitate to let you-all know if this was a 8 question. 9 Q. Did your attorney tell you not to volunteer it? 10 A. No, sir. But I take communication between me 11 and my attorney as a privilege I'd like to maintain. 12 Q. Well, is your testimony correct that the reason 13 you didn't volunteer to Mr. Foley and myself when we were with 14 you on Monday night that your attorney had told you not to 15 volunteer it? 16 A. Well, as I said, I would prefer not to discuss 17 any conversations that my attorney and I have. 18 MR. SMITH: Well, Your Honor, we're entitled to 19 an answer on that. 20 MS. PREWITT: Your Honor, may we approach? 21 JUDGE POTTER: No. He doesn't have to answer 22 that if he doesn't want to, Mr. Smith. 23 Q. Did Mr. Stopher or Mr. Freeman ever ask you to 24 write down your opinion? 25 A. No, sir. 124 1 Q. Did they want you to render an opinion? 2 A. That's why they wanted me to -- in my previous 3 depositions when I had been asked the question about whether I 4 thought Prozac was the cause of any of the incident on 5 September 14th, I had said I didn't feel like I could make an 6 informed opinion, so when I met with Mr. Stopher he stated he 7 wanted me to review some materials because he wanted me to 8 make an informed opinion. 9 Q. Okay. This is the material that Mr. Stopher or 10 Mr. Freeman gave you; is that right? 11 A. I don't know exactly what you have. I supplied 12 that today, sir. 13 Q. When did you get the videotape? 14 A. At the first meeting with Mr. Stopher. 15 Q. Did you look at the videotape? 16 A. Yes, sir. 17 Q. What's it about? 18 A. It's about the life of Joseph Wesbecker. 19 Q. Who prepared the videotape? 20 A. I don't know exactly. I would assume someone 21 from Mr. Stopher. 22 Q. This wasn't some news coverage videotape, was 23 it? 24 A. No, sir. 25 Q. This was something that Mr. Stopher had prepared 125 1 that depicted the life and times of Joseph Wesbecker, wasn't 2 it? 3 A. That's my understanding; yes, sir. 4 Q. It started with his birth; correct? 5 A. As I recall; yes, sir. 6 Q. And went up to the time of his death; correct? 7 A. Yes, sir. 8 Q. Talked about the time in the orphanage, talked 9 about the problems that his mom had and his family had when he 10 was a young boy? 11 A. Those were certainly things in there; yes, sir. 12 Q. And you say you looked at that videotape? 13 A. Yes, sir. 14 Q. I see a medical chronology that appears to have 15 been prepared in Mr. Stopher's office; is that right? 16 A. I don't know where it was prepared. I mean, it 17 was certainly given to me by Mr. Stopher; yes, sir. 18 Q. But you had all the medical records, didn't you? 19 A. Only mine. 20 Q. And you had the records from Mr. Wesbecker's Our 21 Lady of Peace hospitalizations and some of his previous 22 psychiatrists' hospitalizations? 23 A. I did not have all their records; no, sir. 24 Q. Did you ask them for this? 25 A. No, sir. 126 1 Q. They gave this to you? 2 A. Yes, sir. 3 Q. Then here's an abbreviated chronology, gosh, 4 ought to be 75 pages, starting 4-11-43 going up to 9-14-89. 5 Did you prepare this? 6 A. No, sir. 7 Q. Did you read this? 8 A. Yes, sir. 9 Q. And you plan to charge Mr. Stopher or Mr. 10 Freeman or Eli Lilly and Company for reading this? 11 A. Well, I hope they will reimburse me for my time; 12 yes, sir. 13 Q. Here's another document; can you identify that 14 document? 15 A. This is a document that was given to me by Mr. 16 Stopher. Apparently the wording of -- oh, I guess it would be 17 a package insert from Germany for Prozac. 18 Q. When did Mr. Stopher give you this? 19 A. That was at the second meeting. 20 Q. Did you ask for it? 21 A. No, sir. 22 Q. He just gave it to you? 23 A. Yes, sir. 24 Q. There are some yellow highlight on this. Is 25 that your yellow highlight or is that highlight that had 127 1 already been provided? 2 A. That had already been on there. 3 Q. That talks about risk patients and this is the 4 German package insert. It says, "Risk of suicide. Fluctin 5 does not have a general sedative effect on the central nervous 6 system; therefore, for his/her own safety, the patient must be 7 sufficiently observed until the antidepressant effect of 8 Fluctin sets in. Taking an additional sedative may be 9 necessary. This also applies in cases of extreme sleep 10 disturbances or excitability." Correct, sir? 11 A. To the best of my recollection; yes, sir. 12 Q. Had you ever seen this before? 13 A. No, sir. 14 Q. Had you ever heard a recommendation such as this 15 before? 16 A. No, sir. 17 Q. This is certainly not the recommendation in the 18 United States package insert that you psychiatrists in this 19 country get, is it? 20 A. No, sir. 21 Q. But you never heard of that until a couple of 22 weeks ago; is that right? 23 A. That's correct, sir. 24 Q. Apparently there's also a four- or five-page 25 document with the names of the plaintiffs on this case -- with 128 1 the names of the deceased plaintiffs on this case telling 2 where they were when they were shot or killed. Did you 3 prepare this? 4 A. No, sir. 5 Q. Here's another event -- document entitled Event. 6 It's 50 or 60 pages; correct? 7 A. Yes, sir. 8 Q. Some more chronologies of weapon purchases and 9 chronology of guns and weapons; right? 10 A. Yes, sir. 11 Q. And they gave you all of this material in the 12 first or second visit where they met with you and your lawyer 13 in your lawyer's office, Doctor Coleman? 14 A. Well, as I recall, the first meeting was in Mr. 15 Stopher's office, the second one was in my attorney's office. 16 Q. Oh, you went over to Mr. Stopher's office the 17 first time? 18 A. Yes, sir. With my attorney. 19 Q. Additionally, apparently they've given you some 20 more material that you haven't reviewed; is that right? 21 A. Yes, sir. That's correct. 22 Q. Well, it looks like there's a listing of the 23 people who had testified in this case and when they testified; 24 correct? 25 A. Well, I haven't really reviewed these materials, 129 1 sir. 2 Q. Okay. Well, we'll review it together. Looks 3 like there's an abstract of trial testimony in this case that 4 they prepared for you, also; correct? 5 A. That's my understanding; yes, sir. 6 Q. It looks like there are some things that have 7 even been highlighted for you; right? 8 A. I haven't looked at it. 9 Q. They're in bold, do you see that? 10 A. I'll take your word for it; yes, sir. 11 Q. This is not the actual transcript that this 12 lady's providing; these are summaries that Mr. Stopher's 13 office has prepared. Is that what it appears to you? 14 A. That's my understanding. 15 Q. That's what they told you it was, too, isn't it? 16 A. That's my understanding; yes, sir. 17 Q. Testimony of the various plaintiffs and then it 18 looks like they also sent you the testimony of Doctor Peter 19 Breggin; right? 20 A. Yes, sir. 21 Q. But it doesn't look like it's all the testimony 22 of Doctor Breggin, does it? 23 A. I wouldn't know that, sir, I haven't reviewed 24 that and I wasn't here for his testimony. 25 Q. It looks like it's mostly questions propounded 130 1 by Mr. Freeman, but you hadn't looked at any of this? 2 A. No, sir. 3 Q. Do you plan to? 4 A. Sir? 5 Q. Do you plan to? 6 A. Well, I hoped to have if I was going to review 7 it, review it by now. At this time I don't plan to; no, sir. 8 Q. Did you make arrangements with Mr. Stopher or 9 Mr. Freeman or anybody from Eli Lilly about coming here and 10 testifying, Doctor Coleman? 11 A. Arrangements, sir? I'm not sure what you mean. 12 Q. Did they tell you "We're going to be calling you 13 to come into court if Mr. Smith doesn't call you to come to 14 court"? 15 A. Today? 16 Q. No. Later, when they're putting on their case. 17 A. It was my understanding that I would be 18 called -- if the Plaintiffs didn't call me that Mr. Stopher 19 would call me. 20 Q. To render your opinion? 21 A. To testify. 22 Q. And render your opinion? 23 A. Well, I felt like Mr. Stopher was going to ask 24 me my opinion. I don't think he would have me review the 25 materials and not ask me that question. 131 1 Q. You felt like that was the purpose of him giving 2 you the materials? 3 A. That's correct. To make an informed opinion. 4 Q. Well, I don't -- let's see. This is a box of 5 stuff you already had; is that right, Doctor Coleman? It's 6 your deposition and things of that nature? 7 A. Yes, sir. 8 Q. Okay. Incidentally, was this stuff being hand 9 delivered to you on a periodic basis? Were you going by Mr. 10 Stopher's office and getting it? How was this being 11 transmitted to you? 12 A. Well, the -- most of it was delivered in the two 13 meetings. I had requested some additional materials and Mr. 14 Stopher had requested a meeting to deliver me the second set 15 of materials. I think those last two trial transcripts or 16 summaries were hand delivered. 17 Q. By whom? 18 A. Well, I think they were sent to my attorney's 19 office and then they were delivered by my attorney to me. 20 Q. Okay. I don't see in this stack of material any 21 of the depositions of any of Lilly's experts, Doctor Greist, 22 Doctor Granacher, or Doctor Schwab. Have you reviewed any of 23 their experts' opinions? 24 A. No, sir; I have not. 25 Q. And they've not been provided to you? 132 1 A. No, sir. 2 Q. Did you know even that they've given their 3 deposition in this case? 4 A. I don't know that for certain, no, sir. 5 Q. Did you know, for instance, that Doctor Greist 6 has testified in deposition that Prozac can cause 7 violent-aggressive behavior in some individuals? 8 A. I don't know that; no, sir. 9 Q. Would that be something that you think might be 10 helpful in rendering an opinion is knowing facts like that? 11 A. I don't know if Doctor Greist's opinion would 12 necessarily influence mine. 13 Q. Well, would it make any difference the fact that 14 he, like you, had been hired by Eli Lilly and Company? 15 A. I've not necessarily been hired, sir. Like I 16 said, I'm just hoping to be compensated for my time. 17 Q. You've not been paid yet; correct? 18 A. I've not been told I was going to be paid. 19 Q. Did the lawyers for Lilly or Mr. Stopher or Mr. 20 Freeman give to you that statement in the response by Lilly 21 back as early as 1984 to the BGA that said if Prozac is used 22 in accordance with the -- 23 MR. STOPHER: Objection. Your Honor, can we 24 approach the bench? 25 (BENCH DISCUSSION) 133 1 JUDGE POTTER: Let Mr. Smith finish his question 2 so I know what you're talking about. 3 MR. SMITH: Did you know that Lilly employees in 4 1984 had sent to the BGA a statement to the effect that 5 Prozac, if used in accordance with the package instructions in 6 individuals with sedatives only in individuals who present 7 risk of suicide or excitability, then there should be no doubt 8 about its positive benefit/risk ratio? 9 MR. STOPHER: Your Honor, what he's been sent is 10 here and he knows the answer to this, and all he wants to do 11 is argue with the Witness about things that he knows this 12 Witness doesn't know anything at all about. What he's got 13 here is the extent of what he's got on this case and we all 14 know that. He spent a lot of time going through it and all 15 this is is just self-serving questions on materials that he 16 asked of other witnesses that this Witness clearly has no idea 17 about. And, again, it's one of those items not to get an 18 answer but to ask a question, and that's argumentative and 19 it's inappropriate. 20 JUDGE POTTER: Well, I think, Mr. Smith, 21 apparently at some point this person is going to state an 22 expert opinion. Did you have X; no. Would it have made a 23 difference to you if you had X, so objection is overruled. 24 (BENCH DISCUSSION CONCLUDED) 25 Q. Did they send to you in any of the documents 134 1 Plaintiffs' Exhibit 64 in this case, Doctor Coleman, that 2 concludes with the statement -- I'll come up here and I'll let 3 you read it. 4 SHERIFF CECIL: The jurors can't see because of 5 the sign. Can I set it down or did you want it to remain up? 6 MR. SMITH: No. They can set it down. 7 In Plaintiffs' Exhibit 64, Doctor Coleman, back 8 in 1984, Lilly in Germany was replying to a list of concerns 9 of the BGA, which is the German equivalent of the FDA, and 10 they concluded by saying if the drug is used according to the 11 revised package literature, that is, in agitated and suicidal 12 patients only together with concomitant sedative drugs, there 13 should be no doubt on fluoxetine's positive benefit/risk ratio 14 in the treatment of depression. Did they send that to you? 15 A. No, sir; I've not seen that before. 16 Q. Did you know, Doctor Coleman, that Lilly, 10, 17 20 -- 10 years ago was making that kind of recommendation for 18 patients in Germany? 19 MR. STOPHER: Objection, Your Honor. 20 JUDGE POTTER: Overruled. 21 A. No, sir; I wasn't aware of that. 22 Q. Did Mr. Stopher tell you that? 23 A. Mr. Stopher showed me the BGA document that you 24 just -- not that one but the one that I was supplied with. 25 Q. Did Mr. Stopher tell you that ten years ago, 135 1 five years before Joseph Wesbecker shot these people and their 2 loved ones, that Lilly themselves was recommending to the 3 German people that if people have problems with agitation they 4 need to have a sedative? Did he tell you that? 5 A. No, sir; he did not. 6 Q. Did Mr. Freeman tell you that? 7 A. No, sir; he did not. 8 Q. You didn't know that then, did you? 9 A. Excuse me, then being when? 10 Q. When you prescribed it to Joseph Wesbecker. 11 A. No, sir. 12 Q. Did Mr. Stopher or Mr. Freeman send you -- 13 because I don't see this in his packet, Plaintiffs' Exhibit 14 63, which is the medical opinion from the BGA dated May 1984, 15 that summarized the opinion that says, "Considering the 16 benefit and the risk, we think this preparation, that is 17 Prozac -- totally unsuitable for the treatment of depression"? 18 Did you know that, Doctor Coleman? 19 A. At the time I prescribed the medication for Mr. 20 Wesbecker? 21 Q. Yes, sir. 22 A. No, sir. 23 Q. Would that have made some difference to you? 24 A. I don't know if it would or not. 25 Q. Would you like to have had as much information 136 1 available to you as you could have about the risk and benefit 2 of Prozac when you gave it to Joseph Wesbecker? 3 A. Certainly with any medication I'd like to have 4 as much information as I can. 5 Q. Knowledge is power, isn't it, Doctor Coleman? 6 A. In some ways; yes, sir. 7 Q. You have to have information about medications 8 you dispense to the public, don't you? 9 A. Certainly need information. That's correct. 10 Q. It's something you want, isn't it? 11 A. Yes, sir. That's right. 12 Q. But you didn't know that in 1984 the medical 13 personnel in Germany had found this product totally unsuitable 14 for treatment of depression, did you? 15 A. No, sir. 16 Q. Did you know that back as early as 1984, the 17 medical government -- the medical authorities in Germany had 18 found that the frequency of side effects with Prozac was very 19 high, partly more than 90 percent, and the side effects 20 resulted nearly in each study in dropouts, the frequency of 21 side effects depended on the dose, the age and the duration of 22 therapy. Deciding for the clinical significance of side 23 effect is not only the frequency of the occurrence but also 24 their severity. Did you know that? 25 A. No, sir. 137 1 Q. Did Mr. Stopher give this to you when he brought 2 this other material to you? 3 A. No, sir. I've given you what he's given me. 4 Q. Would that have been significant to you to have 5 information about the side effects? 6 A. Significant? 7 Q. Beg pardon? 8 A. Right now or back then when I was treating Mr. 9 Wesbecker? 10 Q. How about when you were treating Mr. Wesbecker. 11 A. Well, it certainly wouldn't have hurt any, 12 that's for sure. But, you know, that's making assumption that 13 Germany has more accurate reports than the United States does. 14 Q. You make the assumption that Germany has more 15 accurate reports than the United States? 16 A. No. That's saying that's making the assumption. 17 I don't necessarily make that assumption. 18 Q. You see what in fact occurred -- maybe Mr. 19 Stopher didn't tell you this in your meeting. What they did 20 in Germany was look at the Prozac clinical data that was 21 submitted to them by Lilly. Okay. Did you know that, that 22 that's what this is based on, a review of Lilly's data? 23 A. No, sir. 24 Q. Did you know that they found 16 suicide 25 attempts? 138 1 A. No, sir. 2 Q. And did you know they were concerned about those 3 suicide attempts? 4 A. Well, I know now. I did not know then. 5 Q. You didn't know it when Joseph Wesbecker got 6 Prozac, did you? 7 A. No, sir. 8 Q. Mr. Stopher didn't tell you about it when he met 9 with you just a few weeks ago, did he? 10 A. No, sir. 11 Q. Did you know that the medical comment there 12 says, "During the treatment with the preparation, 16 suicide 13 attempts were made, 2 of these with success. As patients with 14 a risk of suicide were excluded from the studies, it is 15 probable that this high proportion can be attributed to the 16 action of the preparation in the sense of the deterioration of 17 the clinical condition which reached its lowest point? Did 18 you know that? 19 A. I did not know that specific report. 20 Q. Did you know, Doctor Coleman, that people with 21 serious suicidal risk were excluded from the Prozac clinical 22 trials? 23 A. No, sir. 24 Q. Did you know that individuals were given 25 concomitant sedative tranquilizers during the Prozac clinical 139 1 trials? 2 A. No, sir. 3 Q. Did you know that the investigators who were 4 conducting the Prozac clinical trials were advised under the 5 protocols to reduce the amount of the medication that was 6 given in cases where agitation and sleep disturbances 7 occurred? 8 A. No, sir. 9 Q. Would that have been significant to you, Doctor 10 Coleman, when you prescribed this product to Joseph T. 11 Wesbecker on September or August 10th, 1989? 12 A. It might have been significant. I don't know if 13 it would have changed anything. 14 Q. But we don't know, do we, because you didn't 15 know about that then, did you, sir? 16 A. That's correct. 17 Q. Did you know that people with schizoaffective 18 disorder were excluded from the Prozac clinical trial? 19 A. I didn't know that, but I would assume that 20 would be the case. 21 Q. Did you know that Eli Lilly and Company had a 22 psychiatric advisory board? 23 A. I think I've been aware of that. I'm not sure 24 what their role or function is. 25 Q. Have you in your research for this case or at 140 1 all read any articles by Doctor Jan Fawcett? 2 A. Jan Paulsen? 3 Q. Fawcett. F-A-W-C-E-T-T? 4 A. Not that I recall. 5 Q. He's a member of the Lilly psychiatric advisory 6 board. Have you seen any writings by him or recommended 7 concomitant sedative use in connection with patients who are 8 jittery on Prozac and are a risk of suicide, did you know 9 that? 10 A. Well, I don't know if his name might be one of 11 the co-authors of some of the papers. I don't recall that 12 being one of the authors' names. 13 Q. Now, did you -- we've got a lot of summaries 14 here that were provided to you by Mr. Stopher, but did you see 15 any actual, full depositions? 16 A. No, sir. 17 Q. Did you see any actual, full trial testimony -- 18 that's right, you didn't read any of this. You didn't even 19 read the summaries of the trial testimony, did you? 20 A. No, sir. 21 JUDGE POTTER: We'll go ahead and take the 22 afternoon recess. As I've mentioned to you-all before, do not 23 permit anybody to communicate with you about this case; do not 24 discuss it with each other. We'll stand in recess for 15 25 minutes. 141 1 (RECESS) 2 SHERIFF CECIL: The jury is now entering. All 3 rise. All jurors are present. Court is back in session. 4 JUDGE POTTER: Please be seated. 5 Doctor, I'll remind you you're still under oath. 6 Mr. Smith. 7 Q. So I can understand, Doctor Coleman, that 8 material that Mr. Stopher or Mr. Freeman sent you is just 9 summaries of what they perceived the facts to be in this case, 10 isn't it? 11 A. I'm sorry? All of the material? 12 Q. Yes. 13 A. Such as the chronology? I assume the pertinent 14 things they felt like was important. 15 Q. But you understand they're a summary of things 16 that they think are pertinent; correct? 17 A. Certainly. 18 Q. And that you don't know whether or not that is 19 in fact the truth or not, do you? 20 A. I would hope they would put the correct excerpts 21 from other people's depositions in there. 22 Q. Well, there's summaries of testimony and 23 summaries of facts, isn't there? 24 A. That's correct, sir. 25 Q. And you don't know whether those summaries of 142 1 testimony and summaries of fact are accurate, do you? 2 A. Not for certain; no, sir. 3 Q. You would hope that they would accurately 4 represent the facts in this case, wouldn't you? 5 A. I would certainly hope so. 6 Q. Because you would hope that Lilly would 7 accurately tell you as the physician, accurately, truthfully 8 and fully what occurred during the clinical trials in 9 connection with this product, wouldn't you? 10 A. Are you talking about Mr. Stopher and Eli Lilly? 11 I mean, I would assume that, you know, information I get on a 12 certain medication is going to be accurate and truthful. 13 Q. But you didn't know that that medication you 14 gave to Joseph Wesbecker was tested during the clinical trials 15 with concomitant medications to calm anxiety and agitation and 16 anger, did you? 17 A. I still don't know that, other than you telling 18 me that. 19 Q. Do you not believe me, Doctor Coleman? 20 A. Certainly, Mr. Smith; I do believe you. 21 Q. Did Mr. Stopher tell you that patients in the 22 Prozac clinical trials got concomitant sedative tranquilizer 23 medications for agitation and anxiety? 24 A. No, sir. 25 Q. Did you ask him? 143 1 A. Did I ask him? 2 Q. Yes. 3 A. I wouldn't have the knowledge to ask him that. 4 Q. No. Because you didn't know it, did you? 5 A. No, sir. 6 Q. The package insert doesn't give you any 7 knowledge concerning the fact that patients were treated in 8 the Prozac clinical trials with sedatives, does it? 9 A. No, sir. 10 Q. Would you like to have accurate information 11 concerning the appropriate dose of this medication? 12 A. Assuming I don't have accurate information? 13 Q. You assume -- 14 A. In my experience the dose that they recommend is 15 an accurate dose. 16 Q. Well, do you know that 10 milligram is just as 17 efficacious as 20 milligrams? 18 A. Not in my experience it's not. 19 Q. Do you know that 5 milligrams was proven in 20 their clinical trials as just as efficacious as 20 milligrams? 21 A. I don't know that; no, sir. 22 Q. Did Mr. Stopher or Mr. Freeman send you that 23 document that was authored by Doctor Leigh Thompson, their 24 chief medical officer, where he said Charlie -- it's 25 Plaintiffs' Exhibit 79; it's in evidence in this case -- where 144 1 Doctor Thompson says, "Charlie, let me ask for your help in 2 putting together two slides for the board." And by that I'll 3 tell you Doctor Thompson has admitted that the board he's 4 talking about there is the board of directors of Eli Lilly and 5 Company. "I've got to say something about 10 milligram both 6 in regard to attributes and to the logistics of when we will 7 file in the U. S." He says, "I don't think we have any 8 10-milligram efficacy data. We do have the Wernicke study of 9 5 milligram versus 20 and 40. Some people have massaged those 10 data to make 5 milligram look not quite as good as 20 11 milligram." Did you know that people at Eli Lilly and Company 12 massaged data to make 5 milligram look not quite as good as 20 13 milligram? 14 A. No, sir. 15 Q. Mr. Stopher tell you that? 16 A. No, sir. 17 Q. Did Mr. Stopher tell you that or Mr. Freeman 18 tell you that in this same memo, Doctor Thompson made the 19 observation, says, "As I recall, 5 milligram actually went 20 down a little faster than the others and ended up about the 21 same on the HAMD. Help me, if you will, to show on 10 22 milligram to the board." Did you know that? 23 A. No, sir. 24 Q. Did you know that actually the 5 milligram got 25 people less depressed quicker? 145 1 A. No, sir; I don't know that. 2 Q. And they didn't tell you that? 3 A. No, sir. 4 Q. Did you know and did they give you Plaintiffs' 5 Exhibit 61 that reflected back in 1984 that the BGA, the 6 German equivalent to the FDA, had raised a number of questions 7 concerning the safety of Prozac? 8 A. The only document I had concerning the BGA was 9 the one that I gave you. 10 Q. Which was the current package insert? 11 A. That's my understanding. That's correct. 12 Q. They didn't tell you anything about how that 13 language happened to be in the German package insert and not 14 be in the United States package insert? 15 A. No, sir, not to my recollection. 16 Q. Would that be something that would have been 17 significant in your search for an opinion to render in this 18 case? 19 A. I don't think it would change my opinion. 20 Q. Would it be something significant to consider in 21 making an opinion? 22 A. Well, I'm aware of some of the things that 23 you've been talking about because of following the trial in 24 the newspaper. I don't know if it would be significant or 25 not. 146 1 Q. Well, did you see any newspaper reports of what 2 has been happening here that caused you to ask Mr. Stopher 3 some questions? 4 A. I'm sorry? I didn't ask Mr. Stopher some 5 questions. 6 Q. Well, was that based on newspaper reports 7 concerning coverage of this lawsuit that you had read? 8 A. What's based? I'm sorry. I'm not understanding 9 your question. 10 Q. I thought you said that you had seen reports in 11 the newspaper in connection with this case about questions 12 that had been raised concerning the safety and efficacy of 13 this drug; is that correct? 14 A. Yes, sir. That's correct. 15 Q. Did you direct any of those questions to Mr. 16 Stopher or Mr. Freeman to ask them whether or not that was 17 correct? 18 A. No, sir. 19 Q. Did they show you Plaintiffs' Exhibit 61 in any 20 of these two meetings or talk about Plaintiffs' Exhibit 61 in 21 any of these two meetings where they said the BGA explained 22 their reservation regarding CNS side effects? 23 A. No, sir; not that I recall. 24 Q. You know what CNS side effects is, don't you, 25 Doctor Coleman? 147 1 A. Yes, sir. Central nervous system. 2 Q. As a psychiatrist, when you prescribe medicines 3 the first thing you're worried about and concerned about and 4 want to be knowledgeable about is the CNS side effects of that 5 particular psychotropic medication, isn't it, sir? 6 A. I wouldn't necessarily say that's accurate. I'm 7 concerned about all side effects, not just central nervous 8 system effects. 9 Q. If you're prescribing a drug that affects the 10 central nervous system, such as Prozac, you want to be 11 concerned about CNS side effects, aren't you? 12 A. That's one of the concerns, but just as well as 13 any other body system side effect. 14 Q. Did they explain to you what these CNS side 15 effects were that were of concern to the German government 16 back as early as ten years ago in 1984? 17 A. No, sir. 18 Q. Well, Exhibit 61 says there have been a few 19 patients complaining of psychosis and hallucinations. Of 20 course, this incident about the sexual abuse, the oral sex in 21 front of the co-workers could have been a hallucination, 22 couldn't it, Doctor Coleman? 23 A. It wouldn't be classified as a hallucination. 24 Q. What would it be classified as? 25 A. Well, if it was not -- if it was deemed 148 1 definitely not to be accurate, it could be classified as a 2 delusion or a paranoid ideation. 3 Q. All right. Well, it says, "There have been a 4 few patients complaining of psychosis and hallucination. They 5 raised concerns that the BGA expects fluoxetine to be a 6 stimulating, activating drug with a side-effect profile of 7 suicides and suicide attempts." Did they tell you that the 8 BGA had that concern about this activating medication? 9 A. No, sir. 10 Q. You agree, don't you, Doctor Coleman, that 11 Prozac is an activating medication? 12 A. I generally feel like it's an activating type of 13 antidepressant in most people. 14 Q. All right. Did you know the Lilly scientists 15 have been sitting up here and denied that this was an 16 activating medication? 17 A. I'm just only talking about with my experience 18 with it. 19 Q. Did Mr. Stopher or Mr. Freeman or anybody at 20 Lilly tell you that they had people here like Doctor Leigh 21 Thompson, their chief scientific officer, who were swearing 22 under oath that this wasn't an activating, stimulating 23 medication? 24 A. No, sir. 25 Q. Do you recognize that activation can present a 149 1 risk for individuals who are suicidal? 2 A. I would not necessarily make that connection; 3 no, sir. 4 Q. And they didn't tell you about that connection, 5 did they? 6 A. I'm not aware of any connection to that effect. 7 Q. And the United States package insert doesn't 8 tell you about that connection for those people and physicians 9 like you practicing in the United States, does it? 10 A. It does not say anything to that effect; 11 no, sir. 12 Q. Did you know that the application for Prozac was 13 withdrawn by Lilly in Germany? 14 A. Only from what I've read in the newspaper 15 reports. 16 Q. Did Mr. Stopher or Mr. Freeman tell you about 17 that? 18 A. No, sir. 19 Q. Did you ask them why the application for Prozac 20 had been withdrawn in Germany? 21 A. No, sir. 22 Q. Did they tell you that the application for 23 Prozac had been rejected in Germany? 24 A. No, sir. 25 Q. Did they tell you that the only way the 150 1 application got accepted in Germany was by virtue of this 2 package insert that they showed you that suggested the use of 3 concomitant tranquilizing medications? 4 A. No, sir. They did not tell me that. 5 Q. They didn't bring that to your attention? 6 A. No, sir. 7 Q. Did they tell you that as in exhibit -- says 8 back as far as ten years ago in 1984 that Lilly had said, 9 quote, it might well be that we will have to recommend 10 concomitant tranquilizer intake for the first two or three 11 weeks in the package literature because of this suicidality, 12 activation, stimulating-type problem that had been recognized 13 by the German government? Did they tell you that? 14 A. Did they tell me that; no, sir. 15 JUDGE POTTER: Anything else, Mr. Smith? 16 MR. SMITH: I'm about finished, Your Honor. 17 Did they tell you that ten years almost to the 18 day before this shooting occurred, ten years almost to the day 19 before you prescribed Prozac for Joseph Wesbecker, on August 20 21st, 1979, their medical monitor, Doctor I. H. Slater had had 21 a report of a young man with thought disorder who should 22 probably be classified as schizophrenic or schizoaffective 23 that had to be discontinued from the Prozac clinical trials 24 and given a strong antipsychotic medication after taking 25 Prozac? 151 1 A. I'm sorry. Did they tell me that; is that the 2 question? 3 Q. Yes. 4 A. No, sir; they did not. 5 Q. Would that have been something that you would 6 have liked to have known? 7 A. Well, as I recall, the package insert, even when 8 I prescribed it to Mr. Wesbecker, did say something about the 9 possibility of precipitating psychosis or hallucinations as 10 you find with all antidepressant package inserts, so that 11 effect more likely was already in there. 12 Q. And so is that why you felt like you could be 13 safe to go ahead and give this to Joseph Wesbecker? 14 A. I'm sorry. I don't understand what you're 15 asking me. 16 Q. Is that why you say you think it would have been 17 safe -- you felt like it had been safe to give this to Joseph 18 Wesbecker? 19 A. I felt as if it was safe as any other medication 20 to give him. 21 Q. You didn't intend in prescribing this 22 medication, certainly, Doctor Coleman, that you would see this 23 deterioration as you described in your 9-11-1989 note? 24 A. Certainly not, I didn't intend to see that. 25 Q. Do you intend to ask Mr. Stopher or Mr. Freeman 152 1 or anybody from Lilly for any more material in this case? 2 A. Not at this time; no, sir. 3 Q. Do you know if they intend to give you any more 4 material? 5 A. I don't know if they do or not; no, sir. 6 Q. Do you know whether there's any plan for you to 7 continue your work that you are keeping time on in order to 8 bill them for this work? 9 A. After today I don't assume that there is; no, 10 sir. 11 Q. After today you assume that there's not going to 12 be any need to keep any more time; is that right? 13 A. That's my assumption, that's correct, or after I 14 finish testifying, whether today or tomorrow. 15 Q. Do you have a bill prepared for them? 16 A. No, sir. Do not. 17 Q. Do you have a draft of a bill prepared for them? 18 A. No, sir. Do not. 19 Q. How have you kept your time? 20 A. I have a date book that I will jot down how much 21 time I spent the day before. 22 MR. SMITH: Can I have one minute, Your Honor? 23 JUDGE POTTER: Okay. 24 Q. Do you intend to charge Mr. Stopher or Mr. 25 Freeman or Eli Lilly and Company for your testimony here 153 1 today, Doctor Coleman? 2 A. I haven't thought about that. Mainly my thought 3 was to charge them for my time. I was going to have to be 4 here today one way or the other. 5 Q. So what's the answer? Are you going to bill 6 them for your time here? 7 A. I hadn't assumed that. 8 Q. You had assumed that? 9 A. No, I had not assumed that. Maybe that's a good 10 idea. I don't know. I had not assumed that. 11 Q. You think it might be a good idea, though, to 12 bill them? 13 A. I don't know. This is certainly taking a lot of 14 time. 15 Q. Okay. 16 JUDGE POTTER: Mr. Stopher. 17 18 EXAMINATION ___________ 19 20 BY_MR._STOPHER: __ ___ _______ 21 Q. Doctor Coleman, if I understand correctly, you 22 were subpoenaed by both parties in this case; is that true, 23 sir? 24 A. Well, I only received one subpoena and that was 25 from the Plaintiffs. 154 1 Q. And that was from Mr. Smith? 2 A. Yes, sir, as I recall. 3 Q. And you are here today pursuant to that subpoena 4 and pursuant to his request; am I correct about that, sir? 5 A. Yes, sir. That's correct. 6 MR. SMITH: May we approach the bench, Your 7 Honor? 8 (BENCH DISCUSSION) 9 MR. SMITH: I think he's clearly their witness 10 and Mr. Stopher can't lead him. 11 JUDGE POTTER: Well, you called him, Mr. Smith. 12 MR. SMITH: I understand that, but I don't want 13 to interrupt Mr. Stopher. 14 (BENCH DISCUSSION CONCLUDED) 15 Q. It is pursuant to his request and his subpoena 16 that you appeared here today as a witness; am I right, sir? 17 A. Yes, sir. 18 Q. Doctor Coleman, if I understand correctly, you 19 were the treating psychiatrist for Joseph Wesbecker from 20 approximately July the 8th, 1987, until September the 11th, 21 1989; am I right about that, sir? 22 A. Yes, sir. That's correct. 23 Q. And in looking at medical records concerning 24 him, do you know of anyone that treated him as a psychiatrist 25 for any period of time longer than you did, sir? 155 1 A. Not to my knowledge; no, sir. 2 Q. Doctor Coleman, if I understand correctly, in 3 looking at your medical records concerning Mr. Wesbecker, 4 during the two years and three months or two months 5 approximately, sir, that you treated him, you saw him 6 approximately twenty-one times; am I right about that, sir? 7 A. That would be approximately right. I wouldn't 8 know exactly without counting but that's approximately 9 correct. 10 Q. And if I can move this pad over here. If I 11 understand accurately, -- and I'll describe to you, sir, what 12 I'm writing here on the board -- you were his treating 13 physician from approximately July the 8th, 1987, to September 14 the 11th, 1989; am I right, sir? 15 A. That's correct. 16 Q. And during that period of time you saw him 17 approximately 21 visits. Close enough, sir? 18 A. Yes, sir. 19 Q. All right. In other words, a period in there of 20 approximately 26 months and a total of 21 visits or 21 approximately once a month; right, sir? 22 A. Are you including phone contacts in there? 23 Q. No, sir; I was not. There are some more which 24 I'm going to mention in a minute. 25 A. That would be approximately correct. Yes, sir. 156 1 Q. All right, sir. If I understand correctly, sir, 2 on the first visit you were with him for one hour? 3 A. Yes, sir. 4 Q. And on the other visits you were with him for 30 5 minutes; am I right, sir? 6 A. Approximately, yes, sir. 7 Q. Those were one-half-hour sessions, approximately 8 20 of them; right? 9 A. Yes, sir. 10 Q. So if I understand correctly, sir, over the two 11 years and two months, you would have been with him in two 12 years and two months about eleven hours; am I right? 13 A. Yes, sir. 14 Q. And talked to him on the phone several other 15 times; correct, sir? 16 A. That's correct. Yes, sir. 17 Q. Now, sir, I understood Mr. Smith to say that 18 knowledge is power and you agreed; am I correct, sir? 19 A. Yes, sir. 20 Q. And would you agree with me that with regard to 21 your treatment of Joseph Wesbecker that knowledge was 22 important to you, sir? 23 A. Yes, sir. 24 Q. And with regard to Joseph Wesbecker, sir, if I 25 understand, you treated him with medications? 157 1 A. Yes, sir. That's correct. 2 Q. And also by talking with him; am I right? 3 A. Yes. My -- obviously I can do medications 4 sooner than 30 minutes, so the 30 minutes was -- also talking 5 with him was part of the treatment, as well. 6 Q. And in that 30 minutes you would spend some time 7 talking about medications? 8 A. That's correct. 9 Q. And sometimes talking about his life; am I 10 right? 11 A. What he would want to talk about or what I would 12 particularly ask about; that's correct. 13 Q. And if I understand correctly, sir, you were 14 dependent on him to tell you the truth about himself from July 15 the 8th, 1987, through September the 11th, 1989? 16 MR. SMITH: Your Honor, we're going to object to 17 the leading and suggestive nature of -- 18 JUDGE POTTER: Overruled. 19 A. That's correct. I depend on him to tell me the 20 truth either of his own volition or in response to my 21 questioning. 22 Q. In other words, sir, if he told you something 23 about himself, you would not check it to determine if it was 24 true? 25 A. No. 158 1 Q. And if he failed to tell you something about 2 himself, you would not attempt to check and see if he had 3 omitted something that was very vitally important to knowing 4 him; am I right, sir? 5 A. That would generally be correct. If there was 6 something that I felt like I needed some additional 7 information, I might ask to speak to a relative, but I can't 8 do that without a patient's permission. 9 Q. Now, sir, if I understand correctly, then, you 10 would rely on Mr. Wesbecker to tell you what was going on in 11 his life from time to time and to answer your questions; am I 12 right? 13 A. Yes, sir. That's correct. 14 Q. If I understand correctly, sir, you asked 15 Mr. Wesbecker on July 8, 1987, if he was suicidal or had 16 suicidal ideas; am I right, sir? 17 A. Correct. 18 MR. SMITH: Again, Your Honor, we're going to 19 object to the leading nature of the questions. 20 JUDGE POTTER: I think these are kind of 21 preliminary type things. Objection is overruled. 22 Q. Am I correct, sir? 23 A. Yes, sir. That's correct. 24 Q. If I understand correctly, sir, you asked him 25 that question a second time on July the 11th, 1989; am I 159 1 correct, sir? 2 A. You mean September 11th? 3 Q. I'm sorry. September 11th, 1989, sir. 4 A. That's correct. 5 Q. And if I understand correctly, on both occasions 6 his answer was no; am I right? 7 A. As far as having thoughts on that day, that's 8 correct, his answer was no. 9 Q. Now, sir, if I understand, then, for two years 10 and two months there was not a question about suicide and he 11 didn't volunteer any information about suicide; am I right? 12 A. That's correct. Yes, sir. 13 Q. He never during that period of time gave you any 14 cause to believe that he might be suicidal? 15 A. No, sir. Never. 16 Q. Am I correct in understanding, sir, that with 17 regard to homicide -- I've heard a lot of terms in this trial 18 so far, sir; I've heard terms like homicidal ideation. Does 19 that mean anything to you, sir? 20 A. Well, that's a term that I would use or other 21 psychiatrists would use to elicit from a patient, you know, 22 have you ever had any thoughts about hurting yourself, and 23 that would tend to fall under what we call homicidal ideation 24 or otherwise ideas about homicide or killing others. 25 Q. And during the two years and two months that 160 1 Joseph Wesbecker came to see you, did he ever volunteer to you 2 that he was thinking about killing someone else? 3 A. No, sir. Never. 4 Q. Did he ever volunteer to you that he was 5 thinking about and even talking about killing someone else? 6 A. No, sir. Never. 7 Q. Did he ever mention to you during this two years 8 and two months, sir, that he was thinking about and actually 9 taking steps to purchase weapons and to practice with them? 10 A. No, sir. He never talked about weapons at all. 11 Q. Did he ever during the two years and two months 12 that you treated him ever even give you cause to suspect that 13 he might have those kinds of ideas? 14 MR. SMITH: Again, we're going to object to the 15 leading nature of Counsel's questioning, Your Honor. 16 JUDGE POTTER: Let me see you both up here. 17 (BENCH DISCUSSION) 18 JUDGE POTTER: Mr. Smith, it's my impression 19 that on cross-examination, even if it's cross-examination of a 20 friendly witness you still get to use leading questions to the 21 extent that you're going over what was gone over in direct. 22 I'm going to overrule the objection. 23 MR. SMITH: Okay. I don't want to continue to 24 interrupt Mr. Stopher and that's one reason I brought it to 25 the Court's attention. Can I have a continuing objection of 161 1 some sort? I seriously don't want to interrupt his 2 presentation. 3 JUDGE POTTER: The only thing I can say is you 4 need to -- I'm going to rule that again he's going over what 5 you went over. If he gets outside that, you can object. 6 MR. SMITH: Okay. I just don't want to... 7 (BENCH DISCUSSION CONCLUDED) 8 Q. During the two years and the two months that he 9 came to you on twenty-one visits, did he ever even give you 10 the slightest hint that he was acquiring weapons and that he 11 was thinking and talking about committing homicide? 12 MR. SMITH: Again, Your Honor, we're going to 13 object. That assumes facts not in evidence. There's no 14 evidence whatsoever that this man was thinking -- 15 JUDGE POTTER: I'll sustain that objection. 16 Q. Did Mr. Wesbecker even give you any hint that he 17 was thinking about committing homicide? 18 A. No, sir. Never made a threat. Never made 19 anything that would be considered as a veiled threat or even 20 be interpreted as a threat in my presence. 21 Q. Doctor Coleman, in this case, if I understand 22 correctly, on September 11th, 1989, you found or noticed and 23 observed deterioration in Mr. Wesbecker; am I correct, sir? 24 A. Yes, sir. 25 Q. And at that time, sir, am I correct that he had 162 1 been deteriorating the entire time that you had been treating 2 him? 3 MR. SMITH: Objection. That's leading. 4 JUDGE POTTER: Sustained. 5 Q. Doctor Coleman, during the two years and two 6 months did he improve, stay the same or did he deteriorate? 7 A. Well, if you go from the very first visit in 8 July of 1987 up until let's say August of 1988, I would say 9 there was a gradual decline. Now, there would be times he'd 10 be a little bit better but, overall, certainly there was a 11 gradual deterioration over that period of time. 12 Q. Now, sir, he was tried on various medications 13 during the period of time that you treated him; am I right? 14 A. That's correct. Yes, sir. 15 Q. Were any of them successful in treating his 16 condition, sir? 17 A. There was none that was successful at all. 18 There were times it seemed like he would feel a little bit 19 better for a period of time, but that didn't seem very 20 long-lived, so there was really nothing that was successful in 21 treating his condition. 22 Q. Now, sir, on September 11, 1989, you listed in 23 your notes that a cause of the deterioration might be, 24 question mark, Prozac; am I right? 25 A. I think "Prozac, which might be the cause" or 163 1 "Question from Prozac" was another thing I had written in my 2 chart. 3 Q. Were there any other possible causes of 4 deterioration in Mr. Wesbecker at that time that you did not 5 write down? 6 A. Well, there were a couple of others that could 7 have possibly been considered. Was there some other physical 8 condition that might have been causing his deterioration? 9 That was one of the reasons I wanted to hospitalize him was to 10 see if there was something else going on. That was another 11 possibility that I considered at that time. 12 Another possibility was rather than this being a 13 medication was this just another deterioration in his 14 condition of his schizoaffective disorder. Those were the 15 possibilities I didn't note but, as you note from my note, at 16 the time I felt that Prozac might be the most likely cause. 17 Q. Now, sir, in determining the cause of the 18 deterioration, is knowledge about Mr. Wesbecker and his life 19 history of any significance or benefit? 20 A. Well, it certainly can be of benefit, you know, 21 or other variables that might have had possibility that he 22 might not have informed me about certainly could have been 23 important to note. 24 Q. Am I correct in understanding that the more you 25 know about the patient the more accurate the opinion is? 164 1 A. That's correct. Yes, sir. 2 Q. In other words, more knowledge and more facts is 3 better than less knowledge and less facts? 4 A. Correct. 5 Q. Now, sir, in this matter, as of September 11 and 6 September 14, 1989, am I correct, sir, that you had -- or let 7 me ask it this way. 8 Did you have any information about Joseph 9 Wesbecker being homicidal or having homicidal ideas? 10 A. No, sir; not at all. 11 Q. Is it important for you as a psychiatrist in 12 treating a patient who may or perhaps has been involved in 13 homicide to know about the history of homicidal ideas, 14 thoughts, statements and preparations of that individual? 15 A. Certainly that could be very helpful if there 16 had been any history at all of serious threats or homicidal 17 ideation or even attempts, that certainly would be important 18 in any patient. 19 Q. Doctor Coleman, I have provided you, among other 20 things, with information in a form which we'll discuss in some 21 more detail about Mr. Wesbecker's ideas, statements and 22 actions concerning homicide, have I not, sir? 23 A. That's correct. 24 Q. Have you reviewed those statements and those 25 lists of information, sir, at my request? 165 1 A. Yes, sir; I have. 2 Q. And, Doctor Coleman, empowered with that 3 knowledge, assuming that it's accurate, sir, do you have an 4 opinion as to whether or not Joseph Wesbecker committed 5 multiple murders and multiple assaults on September 14, 1989, 6 as a result of his taking Prozac? 7 A. My opinion is that Prozac had nothing to do with 8 it at all. 9 Q. Doctor Coleman, would you explain to the jury 10 the basis for that opinion? 11 A. Well, let me -- 12 MR. SMITH: Your Honor, may I have my same 13 objection that I lodged this morning? I don't want to waive 14 my objections that were lodged this morning. This Witness is 15 expressing this opinion at this time -- 16 JUDGE POTTER: All right. Your objection is 17 overruled. 18 A. Well, let me talk about it in a couple of 19 different ways. One, certainly from the information that I've 20 been supplied with, I knew very little about this man. He 21 talked very little about himself and there was a whole lot 22 that he didn't tell me and that I didn't know and it seems 23 like he also kept from other people. I think there are other 24 reasonable explanations that might be considered as far as the 25 deterioration that I saw on September 11th, 1989. We know 166 1 from the autopsy that he had at least three other 2 antidepressants in his bloodstream, one of those, Trazodone, 3 he had been on, we were just tapering. That theoretically 4 could have been there and been appropriate, but he also had 5 imipramine; desipramine is also listed on there but that's a 6 metabolite or a byproduct of imipramine. Also nortriptyline; 7 that was the Tofranil or the Pamelor that, a year or longer 8 before, that I had prescribed. At some point he had taken 9 those on top of what I had been prescribing. It's my opinion 10 that he probably took them sometime in the month prior to 11 seeing me on September 11th. Certainly when you start mixing 12 medications that you're not supposed to be taking you're going 13 to get adverse reactions to them. I think that's a reasonable 14 possibility. 15 Another possibility is that I think from the 16 information you've given me this man had been planning to 17 execute this assault and this murder, and someone that's 18 planning to do that three days after he's in my office I think 19 would probably be fairly anxious, would be quite anxious 20 thinking about that as a possibility. 21 Another possibility is that maybe he faked all 22 this in my office; that he wanted to look bad in this last 23 session so when the police or whoever comes and looks at my 24 records they would say it was the people at Standard Gravure. 25 It was the sex incident that caused him to do that. So I 167 1 think there are other possibilities certainly that I had no 2 knowledge or possible way to have knowledge of at the time 3 that could be considered possibilities. 4 Now, that doesn't -- you know, it's still 5 possible that Prozac could have been the cause of his 6 deterioration on that time. Now, as far as the events of 7 September the 14th, 1989, it's my opinion that that was a 8 premeditated, planned and executed murder. From the 9 information you've given me, he went to dinner with his 10 ex-wife Brenda on the 13th, he talked with his son Jimmy on 11 the 13th. As I recall from Brenda's testimony he didn't seem 12 any particularly different. 13 MR. SMITH: We're going to object to that, Your 14 Honor. That assumes facts not in evidence and facts in hot 15 dispute. 16 JUDGE POTTER: Let me see you-all up here for a 17 second. 18 (BENCH DISCUSSION) 19 JUDGE POTTER: Mr. Stopher, are you going to be 20 awhile with him this afternoon? 21 MR. STOPHER: Yes, sir. Could I go about 22 another few more minutes and then I'll come to a convenient 23 breaking point before 5:00? 24 JUDGE POTTER: What is left before you get to a 25 convenient breaking point, because Mr. Smith's objection about 168 1 that he's reciting facts that you've given him, you know, that 2 he didn't get out of depositions or get anyplace else I think 3 needs to be addressed so... 4 MR. SMITH: Why don't we just break now then? 5 MR. STOPHER: I'd like for him to at least 6 finish his answer to this question. I don't think that Mr. 7 Smith brought out what the basis is. He's shown the 8 documents. I have no objection to filing them and making them 9 exhibits, but he is entitled to give the basis for his opinion 10 and to complete this answer. 11 JUDGE POTTER: Okay. I'm going to let him 12 complete his answer and then we'll break. 13 (BENCH DISCUSSION CONCLUDED) 14 Q. Doctor Coleman, would you go ahead and complete 15 your answer, sir? 16 A. I think, as I was saying, he had apparently 17 talked to his son the night before and, according to what I 18 read, he stated that he sounded better than he had heard him 19 in weeks. Also reading the information that you had given me 20 in the chronology gives really a chilling testimony to the 21 number of threats. 22 MR. SMITH: Again, Your Honor, we're going to 23 object to this. This is highly disputed and contestsed. This 24 is based on information that we just got at 11 A.M. this 25 morning. 169 1 MR. STOPHER: That's not true. 2 JUDGE POTTER: Ladies and gentlemen, I think 3 we'll go ahead and take the evening recess at this time. As 4 I've mentioned to you-all before, do not permit anybody to 5 talk to you about this case; do not discuss it with each 6 other; do not form or express any opinions about it. We'll 7 stand in recess till 9:00. 8 (JURORS EXCUSED AT 4:45 P.M.; 9 HEARING IN CHAMBERS) 10 JUDGE POTTER: Let me just tell you how I'm 11 analyzing the problem, and I'm not going to revisit whether he 12 should be allowed to give expert testimony or what we went 13 over earlier today. Normally when an expert testifies he's 14 looked at certain things, and it's fairly traditional that if 15 the things he's looked at are stuff that is normally 16 considered by an expert, hospital records, depositions, 17 physical examination of the premises, whatever it happens to 18 be, he gets to kind of wheelbarrow all that stuff in; that, 19 "Well, the reason I think the car went off the road is because 20 the tire was flat and the skid marks from the police report" 21 and et cetera, et cetera. And my problem here is that this 22 guy's wheelbarrowing in of facts are facts that are not 23 normally relied upon by experts, or at least his source of the 24 facts are not normally relied on by an expert. 25 And I'm not -- and I'm just looking at my rules 170 1 again -- I'm not sure I'm in a position to determine that 2 those facts are trustworthy, because I believe you can bring a 3 guy in and he can say, "Yes, I believe there's malpractice," 4 and if he has developed that opinion by reading cookie boxes 5 that's fine; but then for him to be able to explain and 6 wheelbarrow in all the facts about why he has that opinion, if 7 he got it by reading cookie boxes I think he just has to say 8 it's my opinion and that's the end of it, and then if they 9 want to beat on him on cross-examination that's their choice. 10 But on the direct of his giving his opinion -- 11 and in giving his opinion, Mr. Stopher, you've now gone 12 outside of whatever the direct examination was, so he's 13 treated just like he was your witness from the first place. I 14 have problems with him revealing all these facts as part of 15 his testimony. 16 And let me just tell you where I am. On Rule 17 seven whatever-it-is hundred dealing with it, 703B, it says, 18 "If determined to be trustworthiness, to eliminate testimony 19 and unprivileged facts or data relied upon by an expert 20 pursuant to: Subdivision A, may at the discretion of the 21 Court be disclosed to the jury, even though such facts or data 22 are not admissible in evidence." 23 And I have problems with him wheelbarrowing in 24 your summary. I mean, every other guy here, you've given him 25 depositions, I mean, you may have summarized them but at least 171 1 when he takes the stand he says, "I looked at this deposition. 2 I read that medical report. I've done whatever I've done." 3 And then I can at least say -- and it's no reflection on you 4 -- this is trustworthy. It's what they normally rely on. And 5 so that's where I am in letting him wheelbarrow in the basis 6 for his opinion. 7 MR. STOPHER: I understand. Let me give you my 8 position on it, Judge. Number One, Doctor Coleman, as I will 9 bring out, has very limited eyesight. 10 JUDGE POTTER: I've got a little yellow sticker 11 about it. I mean, I thought, is this guy blind? How would he 12 even know if someone was -- 13 MR. STOPHER: He has histoplasmosis. 14 JUDGE POTTER: I mean, I don't mean to be making 15 fun of him or anything. 16 MR. STOPHER: I don't think it's -- I didn't 17 take it that way and he wouldn't either, I'm sure. 18 JUDGE POTTER: I have a friend that has it. 19 MR. STOPHER: I could not expect him reasonably 20 to read the numbers of depositions that have been taken in 21 this case. 22 MS. ZETTLER: Give me a break. 23 MR. SMITH: Submitted in especially such a short 24 time. 25 MR. STOPHER: Judge, we go through this every 172 1 day. Aren't we beyond this point in our careers? 2 MR. SMITH: I apologize, Ed. I will stop. I 3 hope you understand, I really do apologize. 4 MR. STOPHER: I do understand, Paul. But Ms. 5 Zettler is the one who does not apologize and who keeps on 6 doing it. 7 MS. ZETTLER: I apologize, too. 8 MR. SMITH: It's not professional and I 9 apologize. 10 MR. STOPHER: That's part of the reason why I 11 did this. Number Two, the chronologies have been supplied to 12 Mr. Smith and Ms. Zettler. They contain quotes out of 13 depositions. 14 JUDGE POTTER: Can I see one? 15 MS. ZETTLER: (Hands document to the Court). 16 MR. STOPHER: Maybe the best ones are his that 17 are out there, but the one that she's just given you are fine 18 with me. Those are her notes or somebody's notes and not 19 mine. But as you'll see, Judge, they contain quotes and 20 citations to the pages in the deposition. Everything on here 21 is documented as to what the reference is, and I did not think 22 that it was reasonable for this Witness to have to read all of 23 these depositions, just the ones that are really relevant, 24 Your Honor, and there are just a few of them, but during the 25 time that he was treating him, for example, the list of 173 1 threats. And they're documented and they're quoted and it 2 gives the page citation. Now, this was done because of his 3 limited eyesight. It was done because to require him to read 4 page after page of deposition to get that information I did 5 not think was realistic and I do think that it is important to 6 give this man who treated Mr. Wesbecker -- he's been the only 7 person that's testified so far in this case who did treat him 8 and in fact will probably be the only one that ever does. For 9 him not to have this information is going to give a very 10 distorted picture to the jury about the issues of causation. 11 Now, because of his handicap, because of the 12 voluminous nature of this, I did it in this format. Now, if 13 anybody wants to claim that those deposition quotes are 14 inaccurate or that they are distorted or that they are made up 15 or that they're a fraud or they're misrepresented, as far as 16 I'm concerned, Judge, we can hear that and you can make a 17 determination. 18 JUDGE POTTER: We'll spend the whole trial 19 trying that. 20 MR. STOPHER: But I do think, Your Honor, that I 21 don't intend to go over every entry in that chronology, but I 22 do intend to go over the history of threats that he made and 23 the history of homicidal ideation that Mr. Wesbecker had 24 during the period of time that Doctor Coleman was treating 25 him, and if I don't prove that later on, then so be it; that's 174 1 an inappropriate opinion and an inappropriate basis. But I do 2 intend to prove it and it is in this record. 3 JUDGE POTTER: Well, it's awful hard for a jury 4 to sort out questions and what experts tell them they relied 5 on from what the actual testimony is. 6 MR. STOPHER: Your Honor, the other offer that I 7 would make to you is that with regard to the statements in 8 these chronologies and their accuracy, that I would offer, in 9 lieu of going over this all at this time, to recall Doctor 10 Coleman after the proof is in in the matter and let him then 11 give the details and cite the specifics and the history of 12 threats that is relevant to his opinions. Certainly it is not 13 my purpose or intent to have Doctor Coleman base an opinion on 14 facts that are not accurate or things that are not going to be 15 proven. I don't play the game that way, and the suggestions 16 all afternoon have been that I do play the game that way. And 17 I'm not about to do it in this case or in any other case. 18 JUDGE POTTER: Well, let me... Let me ask you 19 this. I mean, there's the old-fashioned way of doing experts, 20 which is you say, Doctor, I want you to assume A, B, C, D, E, 21 F, G; one, two, three, four, five. Assuming that those are 22 true, do you have an opinion as to whether or not... And is 23 there any way -- and I'm going to listen to you, Mr. Smith -- 24 that you can make conclusory things, that Mr. Wesbecker had 25 been making threats for two years prior to this or whatever 175 1 conclusions you want, and let him answer your questions that 2 way? I mean, that's the old-fashioned way to do it, but I 3 still have -- because, you know, I don't want to go down each 4 one of these things, but apparently some of them, even though 5 they're said in the depositions, they're still going to be in 6 dispute. You have somebody that says he was unhappy or sad, 7 and then they're going to have somebody who says he was the 8 Pillsbury Doughboy, he was jolly and happy. 9 What do you want to say, Mr. Smith? 10 MR. SMITH: You see, I think why we're here and 11 why we're into this problem is we've not had the opportunity 12 to question this man about his opinions, about this matter and 13 about this material that's been furnished to him; that's the 14 first problem. 15 JUDGE POTTER: That's revisiting stuff. 16 MR. SMITH: I understand that, but I think it's 17 got to be said in light of this. What this is, is a 18 compilation of facts that Mr. Stopher -- I don't think he's 19 misrepresented a particular fact in particular matter, but he 20 didn't tell the whole story or there is somebody that 21 contradicts this. You know, it's disputed matter, and it goes 22 down to matters of credibility, matters of does this matter, 23 does this not matter. But, you know, my thinking is, is that, 24 you know, we're in the situation where he certainly can't 25 bootstrap this stuff in by an expert that we got at 11 A.M. 176 1 this morning. 2 MR. STOPHER: Well, I do have a problem with 3 your representation that you got this at 11:00 this morning. 4 You got it from him at 11:00 this morning; you got it from me 5 more than a month ago. 6 MS. ZETTLER: No, we didn't. Absolutely not. 7 JUDGE POTTER: You've had those documents for 8 some length of time. 9 MS. ZETTLER: That's absolutely not true. We've 10 gotten some chronologies from some witnesses who are not blind 11 that they were provided. And these are new, but -- some of 12 the facts may be the same but these are not the same 13 chronologies. We've seen probably at this point now five or 14 six that they've given Doctor Coleman. Now we have to go 15 through each and every one of those facts and check them 16 against the depositions? 17 JUDGE POTTER: Go ahead, Mr. Smith. You were 18 saying something. 19 MR. SMITH: I just think this is -- I object to 20 them bootstrapping this summary of facts into evidence by 21 questions that give import to these facts with a witness who 22 is getting summary, who's not read a single deposition, who 23 hasn't verified anything, who hasn't been presented anything 24 contrary on the whole matter or any of the other evidence. 25 Now, to let him go through this after we just learned that 177 1 this is their expert causation -- expert on causation this 2 morning, I mean, my suggestion is, yeah, let him give his 3 opinion -- he's given his opinion. I don't think he ought to 4 be entitled to state any facts on which he bases that opinion. 5 MR. STOPHER: Well, Judge, let me back up and 6 say that one of the problems that I had in listening to Doctor 7 Breggin was that Doctor Breggin was given a handful of 8 preselected depositions, none of those depositions and none of 9 those facts were given to Doctor Breggin. 10 MS. ZETTLER: Yes, they were. He had them in 11 Doctor Granacher's. 12 MR. STOPHER: I thought -- 13 MS. ZETTLER: I apologize. 14 MR. STOPHER: To say something anymore, it gets 15 frustrating. 16 JUDGE POTTER: No. No. I know. Go ahead, Mr. 17 Stopher. 18 MR. STOPHER: But the fact of the matter is, 19 Your Honor, that everybody that is qualified to give an 20 opinion, whether it's Doctor Breggin or Doctor Coleman or 21 Doctor Schwab, their opinion is only as good as the 22 information on which they base it. And he has now been asked 23 about all of this information that's been given to him, not by 24 me, by Mr. Smith. Mr. Smith is the one that brought it in. 25 He's the guy that laid it out on the table and he chose to do 178 1 that. It seems to me, Your Honor, that when Doctor Coleman 2 gives an opinion, he's entitled to give the bases for that 3 opinion, and if someone thinks that this basis is not in fact 4 or that it's not going to be proved, fine. 5 I have no problem, Your Honor, about saying to 6 him, "Doctor Coleman, let me ask you to assume that David 7 Fewell said in his deposition" at page such and such the 8 following things and ask him that. I don't have any problem 9 with that. If you want to proceed that way, the old-fashioned 10 way as you called it, I don't have any difficulty with that 11 because I'm not about to ask this man to assume facts that are 12 not accurate. 13 Now, they can dispute those facts. They can 14 call somebody and say, well, David Fewell didn't say that or 15 Joe Wesbecker didn't say that to David Fewell. That's fine. 16 They can cross-examine Doctor Coleman with that. And if the 17 Court requires that it be connected up, I don't have any 18 problem about recalling him as part of my case to the effect 19 that let me ask you to assume the following things were 20 testified at this trial and quote from the trial transcripts. 21 It's going to be the same thing. He cannot sit here and 22 listen to this; he must get these facts and this testimony 23 from either deposition or trial transcripts. There's no other 24 source for it, and without that, Your Honor, he doesn't have 25 the basis to give an opinion, just like Doctor Breggin. 179 1 JUDGE POTTER: The problem with it is we get our 2 little habits of how things happen, and then when they don't 3 happen the way they usually happen, at least as a judge, you 4 know, we've got to think about how we're going to handle it. 5 So I'm thinking. 6 Mr. Stopher, let me ask you this: When you do 7 it the old-fashioned way, you ask them to assume A, B, C and 8 D, and they're fairly short A, B, C and Ds, they're, you know, 9 he had been planning this for a year, he had bought guns, he 10 had threatened 12 people before this happened, and he was 11 happy and calm with his wife two days before. Do you think 12 you can get your hypothetical into a question that has some 13 conclusions in it, rather than the 8,000 details of how you 14 get to those conclusions? 15 MR. STOPHER: Sure. I don't think there's any 16 problem. I don't intend to spend any more time on the details 17 of this than Mr. Smith spent on the details about the German 18 documents that this man has never seen. 19 JUDGE POTTER: And, quite frankly, I don't want 20 to encourage objections, but about halfway through his German 21 documents and memos, if you had objected I would have probably 22 sustained it, because the first time he asked it it was 23 something fairly significant, a label or a study or something, 24 but then he got down to interoffice memos. 25 Mr. Smith, I'm going to sustain your objection 180 1 to Doctor Coleman reciting lots and lots of details. But I 2 will permit Mr. Stopher to say, Doctor, I want you to assume 3 that in this trial we'll be able to establish the following 4 facts, and give some kind of not every little fact but, you 5 know, a three-minute description of the broad thing they hope 6 to paint, and then, using that, do you have an opinion. And 7 that's the way we'll do it. 8 Now, cross-examination, if you want to get into 9 the details you'll probably open the whole thing up again, or 10 if you want to stay with the assumptions, Doctor, assume that 11 he didn't buy the guns, would that change your mind, you know, 12 that kind of stuff. 13 MR. SMITH: Can I get some idea or maybe even 14 get some draft of the hypothetical question that's going to be 15 posed? 16 JUDGE POTTER: Right. He'll have you a draft of 17 the hypothetical question at 8:30 tomorrow. 18 MR. STOPHER: Actually, Judge, to make one broad 19 hypothetical with different components I think that's just 20 argument; I think those are objectionable. I would like to 21 recite to them certain specific facts one at a time. 22 JUDGE POTTER: Are we talking 65 facts by the 23 time we get through with it all? What are we talking? 24 MR. STOPHER: I don't think that many, sir. 25 JUDGE POTTER: What are we talking about? 181 1 MR. STOPHER: Twenty. 2 MR. SMITH: That's not three minutes. 3 JUDGE POTTER: It depends on what they are. 4 MR. STOPHER: What I would like to cover with 5 him, Your Honor, are items that I know are homicidal and 6 suicidal, and they'll be broken down and I'll identify the 7 source and the page number. I don't have any problem with 8 that. I'm not going to make these things up, and I frankly 9 think to be fair to everybody, that to do a long hypothetical 10 in which I make broad generalizations, I think that's very 11 bogus, to be perfectly honest with you, and I'd just as soon 12 be very specific. I don't have any problem with being 13 specific. 14 JUDGE POTTER: Let's look at it this way. As 15 long as you keep it to fairly specific things the jury can 16 remember and there are not a whole lot of them, Doctor, rather 17 than basing it on what I gave you, now I want you to assume 18 I'll be able to prove the following, and you tick them off. 19 And if it's not too long and it's not too much of a 20 recitation... And will you give them at 8:30 in the morning 21 what your 20 is going to be, so that if there's one that... 22 MR. STOPHER: Judge, I will list the 20 factual 23 items and the sources. 24 MR. SMITH: Does he get to list 20? 25 JUDGE POTTER: We're assuming, Mr. Smith, that 182 1 they're going to be things like he threatened his wife and hit 2 her twice and that kind of stuff. 3 MR. SMITH: Is that one, two or three? 4 JUDGE POTTER: Twenty with subparts. Okay. And 5 since we'll all be over here early tomorrow, because Mr. Myers 6 and Ms. Zettler are going to finish out at 7:30, we've got two 7 to go through tomorrow, right? 8 MR. MYERS: The remainder of Doctor 9 Heiligenstein and Beasley. 10 MS. ZETTLER: And Doctor Beasley. Let's get 11 them over with so we can get on with our lives. 12 JUDGE POTTER: We'll probably finish tomorrow; 13 isn't that a -- 14 MS. ZETTLER: We might spill over into Friday 15 morning, Judge. I don't know, but I think we should be 16 prepared to be finished tomorrow. 17 MR. STOPHER: Judge, if we finish late tomorrow 18 -- tomorrow is Thursday, isn't it? I tend to lose sight of 19 the days here like everybody else. I don't think I really 20 want to start my case on Friday. 21 JUDGE POTTER: You will not have to start before 22 Friday. 23 MR. FREEMAN: Before Monday or before Friday? 24 MR. STOPHER: Because Friday is going to be a 25 half day. 183 1 JUDGE POTTER: That's right. If they finish on 2 Thursday, you can start on Friday; if they spill over on 3 Friday, you can start on Monday. 4 MR. STOPHER: But if they finish Thursday 5 afternoon at 5:00, I've got to start at 9:00 for three hours 6 on Friday? 7 JUDGE POTTER: (Nods head affirmatively) I don't 8 know what you've got planned but -- 9 MR. STOPHER: Well, I'll do it. Okay. That's 10 all right. That's fine. 11 MS. ZETTLER: They've also given us deposition 12 designations this morning, so the rule is the same? 13 JUDGE POTTER: The rule is basically that 14 everybody does the best they can. 15 Are your first couple of witnesses going to be 16 live? 17 MR. STOPHER: Yeah. These depositions are real 18 short. They're not like these marathon things of days on end. 19 MS. ZETTLER: It's quantity not quality, Judge. 20 MR. STOPHER: But in all seriousness, these are 21 short. 22 JUDGE POTTER: Let me ask you one thing. It 23 came up I guess in opening statement and we talked about it 24 once before. The person that was in the juvenile facility 25 with Mr. Wesbecker, was he in there on the rape charge or was 184 1 he in there on something else? 2 MS. ZETTLER: Same thing. 3 MR. STOPHER: He was in there on the same 4 charge, and I don't intend to ask him why he was there. I 5 mean, they can ask him if they want to; that's fine, but it's 6 not I don't think any -- 7 JUDGE POTTER: His testimony is that I was in a 8 cell with or a detention thing with Joseph Wesbecker on April 9 14th, 1957, and he said... Is that what it is? 10 MR. STOPHER: Right. 11 JUDGE POTTER: And you-all have taken his 12 deposition? 13 MS. ZETTLER: Yeah. 14 MR. STOPHER: Right. Right. 15 JUDGE POTTER: Is there anything in the 16 deposition through the cross-examination of him that makes 17 you-all believe you can discredit him in any way? 18 MR. SMITH: Gosh, I hadn't looked at it yet, 19 Judge. I've seen the summary at some time, I'm sure. 20 JUDGE POTTER: I know I ruled that he would just 21 have to be called to testify, but would you take a look at 22 your deposition -- I think when I ruled that way I didn't know 23 it was a rape charge on a juvenile, or maybe I did but it 24 didn't come up on the screen. 25 MR. SMITH: If I can cross-examine him without 185 1 embarrassing him, as long as -- if I can justify representing 2 my client and not asking him that, that's what I'll do, Your 3 Honor. 4 MR. STOPHER: I think what the Court was going 5 to suggest is that we read his deposition rather than make him 6 come here, and read only the portions that are relevant to 7 this, and I have no objection to doing that. 8 JUDGE POTTER: Does he have a name like John 9 Smith or something? 10 MR. STOPHER: It's Charles Conn, C-O-N-N. 11 JUDGE POTTER: I don't know how important it is 12 to Mr. Stopher's case that maybe there could even be a 13 stipulation that if the person who was with Mr. Wesbecker were 14 called to testify he would testify that on such and such a 15 date Mr. Wesbecker said to him, quote, end quote. 16 MS. ZETTLER: (Shakes head negatively). 17 JUDGE POTTER: Okay. Maybe you-all will think 18 about cutting Mr. Conn a little slack. 19 MS. ZETTLER: In his deposition he wasn't all 20 that embarrassed to talk about it. The charges were dropped, 21 it was not a rape, it was a stupid thing that the girls were 22 doing. 23 JUDGE POTTER: One time it's a teenager's 24 daydream and the next time it's a rape charge, and I don't 25 know. 186 1 (PROCEEDINGS TERMINATED THIS DATE AT 5:15 P.M.) 2 * * * 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 187 1 STATE OF KENTUCKY )( )( Sct. 2 COUNTY OF JEFFERSON )( 3 I, JULIA K. McBRIDE, Notary Public, State of 4 Kentucky at Large, hereby certify that the foregoing 5 Transcript of the Proceedings was taken at the time and place 6 stated in the caption; that the appearances were as set forth 7 in the caption; that prior to giving testimony the witnesses 8 were first duly sworn; that said testimony was taken down by 9 me in stenographic notes and thereafter reduced under my 10 supervision to the foregoing typewritten pages and that said 11 typewritten transcript is a true, accurate and complete record 12 of my stenographic notes so taken. 13 I further certify that I am not related by blood 14 or marriage to any of the parties hereto and that I have no 15 interest in the outcome of captioned case. 16 My commission as Notary Public expires 17 December 21, 1996. 18 Given under my hand this the__________day of 19 ______________________, 1994, at Louisville, Kentucky. 20 21 22 23 24 _____________________________ 25 NOTARY PUBLIC 188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25